LEGITIMATION BY PROCEDURE AND BEYOND

Stefan Machura, Bangor University

Niklas Luhmann‘s „legitimation by procedure“ – the questionAdding to Weber‘s theory

To explain Max Weber‘s legal-rational type of legitimacy

Weber: orders are obeyed, authorities empowered according to an accepted legal framework / legal order

Luhmann wants to know more about how this works

A hint: legitimate power: „un pouvoir qui accepte ou même qui institue son propre procès de légitimation“ (Bourricaud).

Insecurity and social meaning

Sociological heritage

Luhmann‘s starting point was a general insecurity and how people address this by making selections.

Luhmann emphasizes that situations carry certain meanings for the individuals involved.

Expectations and learning

Sociological heritage II

Luhmann utilises role theory and the concept of social expectations.

Law is to safeguard expections. You are expected to expect what others expect.

Learning by disappointment and a tooth-gnashing acceptance.

The core idea

The funnel of procedure

Procedures lead from an initial situation with lots of insecurity/possible options to a decision which leaves one option.

Individuals are forced to take up roles in the procedure,

To state their cases consistently and to react to the other party‘s arguments.

Thereby they delete possibiblities and end up in a situation of limited options.

Niklas Luhmann‘s funnel of procedure

Party 1 Party 2?????????????????????????????????????????????????????????

Decision

Stating their case and reacting to the other partythereby eliminating possibilities until the case can be

decided.

The core idea II

The funnel of procedure II

Now, the judge, the voter, the parliament can decide.

Having „voluntarily“ taken part, the parties are obliged to accept the result.Luhmann: differences for criminal trials.

In a court procedure, losing parties learn that they have isolated themselves socially.

The background assumption

A social consensus

Legitimation by procedure works because society expects the losing party to accept the results of procedures.

Luhmann sketches out that procedures need to be unflawed, judges need to be neutral.

From „legitimation by procedure“ ...

Parallel developments

Luhmann‘s theory was widely criticised by philosophers but accepted by an emerging socio-legal scholarsphip.

John Rawls also revived interest in procedures.

From the 1970ies onwards, scholars developed empirical research on the antecedents and consequences of fairness.

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... to „legitimation by fair procedure“

The significance of fairness

Unfair procedures can have a detrimental effect on the acceptance of decisions and institutions.

„Fair process effect“: negative outcomes tend to be accepted.

Individuals do not only want to be treated fairly themselves.

They also watch how others are treated.

And there often even is an understanding that outsiders/rule-breakers be treated fairly.

Detailing the background assumption

Leventhal‘s criteria of fair procedures

Consistency Bias-suppression Accuracy Representativity Correctability Ethicality

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Challenging the individualistic approach

Adding group identification

Luhmann mainly saw the individual as rationally pursuing self-interests.

Later empirical research emphasized the importance of group identitification.

Lind and Tyler‘s „group value theory“ states that fair procedures are symbols for a social group.

Encountering unfair treatment results in disappointment, disengagement and rule-breaking.

The fairness of the representatives of the powers is most important empirically.

Limitations to procedural legitimation I

Isolation after or before?

Luhmann states that social isolation of the losing party is a result of a court procedure.

However, social isolation also is a precondition for the courts working well as they find it difficult to deal with mass defendants.

Limitations to procedural legitimation II

Group identification and organised interests

Individuals who understand themselves as opponents of the majority will only look at favourable decisions.

Organized interest groups will seek opportunities to re-open cases.

Protest groups may resort to violent action when disappointed in procedures.

Procedures can be used by radical groups to produce martyrs and to undercut system legitimacy.

In the end, legitimation by procedure works within a legitimate legal-political order.

Literature I

Legitimation durch Verfahren, 6th ed., Frankfurt at the Main, Suhrkamp 2006

A Sociological Theory of Law, London: Routledge and Kegan Paul 1985

Machura, Stefan, 1997, The Individual in the Shadow of Powerful Institutions. Niklas Luhmann’s ”Legitimation by Procedure” as Seen by Critics. In Röhl, Klaus F., and Machura, Stefan (eds.), Procedural Justice. Aldershot: Ashgate, pp. 181-205

Books by Luhmann Secondary literature

Literature II

Leventhal, Gerhard S., 1980, What Should Be Done With Equity Theory? In K. J. Gergen, M. S. Greenberg und R. H. Willis (eds.), Social Exchange: Advances in Theory and Research, vol. 9, New York: Plenum, pp. 27-55

Machura, Stefan, 1988, Introduction: Procedural Justice. Law and Policy. Law and Policy, 20, 1-14

Machura, Stefan, 2001, Fairneß und Legitimität, Baden-Baden: Nomos

Tyler, Tom R., 1990, Why People Obey the Law, New Haven: Yale University Press

Weber, Max, 1980, Wirtschaft und Gesellschaft, Tübingen: Mohr