Nature of Legal Legitimacy

A definitional argument that runs at the centre of a lot of modern arguments.

When somebody gets asked what makes the law legitimate, you'll probably get a response that points somewhere in the direction of democratic government came up with it. We elect people to make public decisions on our behalf and it's that elected legitimacy that makes their decisions binding.  But the distinctions never were quite so clear. In fact as a simple answer that a democratic body produced the law was one of the biggest concerns a number of democratic theorists always had.

The incubation of modern democracy spent more time concerned about how to prevent governments being abusive to their citizens than ever having too much concern about how much input the citizen had to government decisions. Even those that would argue for less government or a more conservative view tended to still have reservations about exactly how much influence the average person should have. This wasn't a component of the public being uninformed so much is the concern that power would more likely be used as a weapon against other people then as a tool for good.

But as the intellectual elite that emerged from 1680 through 1800 increasingly started to question how power was used and in what ways made it a virtue or a vice created obvious questions. The biggest was what made a law legitimate or maybe more accurately what made it such that one was compelled to obey. 

As powers of monarchs waned, most that would follow what became the classical liberal approach were predominantly concerned about majoritarian rule. That is a government that could basically control the levers of power could do anything it wished. This was completely indifferent to how that government claimed to derive its authority. 

By the 1750s and '60s largely a group of French liberals who were pushing more democratic lines of thinking flipped the argument on its head. Their argument was that the law actually was the source of freedom.  It was the collective will of the nation that had been put together to decide what would serve the greater good. This line of thinking would be one of the key lead ups to the French Revolution; it's also become a cornerstone of  what is now known as progressivism.

One could ask the question whether or not it was permissible to do something if the law was silent. That is if there's no rule in favour or against something you could take that action. This group of French liberals said no. Unless there had been explicit public consent through legalising something you were not permitted to do it. This brand of thinking argues that liberty could only exist within legal constraints because that was where knowing what would serve greater good would occur. One had to trust the collective wisdom of the community, not their own independent will.

The view of driving collective action through Democratic input became the centrepiece of how freedom was defined in this model. One's rights only existed so long as the government concurred. Rights were seen as a public domain not a private one.

If one believes that the view of natural rights is classical liberalism, especially in the British or American sense, it begs an obvious question. Is it possible for voters to voluntarily vote away their own rights and it actually be legitimate. Could a democratic majority for instance take away somebody's right to legal counsel or to a trial? 

The classic Edmund Burke response would be no. Rights precede and succeed any particular individual. They exist as something transcended through natural order. In this sense no individual has the right to vote away their children's rights. In fact the entire notion that the government could precede what a right is was completely preposterous.

If a right could only come after the government agreed to create it, then there could be no such thing as a neutral concept. A government could change its mind at any moment with a public opinion shift meaning that any particular right or wrong was arbitrary to the moment. 

This meant for anybody that believed in the idea of a natural order of any description there had to be some sense of permanency or transcendence. It meant the government had to be constrained by those natural restrictions. This was one of the base points of anything concerning the prudence of governing within a classical liberal structure. It's why most countries within the anglosphere developed constraints on government action even when they did have majorities. Legal legitimacy depended on getting broad consensus not a majority such that there was a broad reason to believe everybody thought what you were doing was correct.

The government wasn't making law as it or the majority saw fit, so much as enforcing societal order as was basically believed to be in place naturally. And most of that order was agreed to by  a larger segment of society than a simple majority.

It's easy to see how some of this argument is taken up in modern times. During the trucker's protest in Canada one of Prime Minister Justin Trudeau's senior officials, Gerald Butts, put out a social media post that sounded  right out of 1750’s France. He bemoaned those that would misuse the rights that the government had graciously granted them.

In complete seriousness. 

His view was that an individual's rights were derived from what the government was willing to protect. And more to the point what the government deemed to be in the public interest because that's what was necessary for collective good was what defined what one's rights or freedoms look like. For those that like to believe the government can manage resources better this has always been an enticing viewpoint.

None of these ideas are new, but it bears in mind that especially in recent decades the re-emergence of belief that democratic will could be used to subvert natural rights has become much more predominant Within a segment of the intellectual class. This is one of the primary drivers of a lot of the new left that emerged in the 1970s and has become a basic education point for most left of centre governments now.

It serves as a prime example that there is still attention with many that believe legal legitimacy only derives from what the government grants. What is legally accepted is based on what the current government sees as being the best course forward. This is one of the problems with trying to have a serious conversation. There's a fundamental difference within the definition Foundation of what the two sides mean. 

For those that value the natural rights approach it's worth remembering that the term democracy can become a problem in that the left believes you can override natural rights with democracy.  By contrast if you're trying to defend the idea of individual autonomy away from central authority democracy can just as easily be a problem.