Thornhill Political Legitimacy

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Political Legitimacy: A Theoretical Approach BetweenFacts and Norms

Chris Thornhill

I. Introduction

The question of political legitimacy is a question that fundamentally divides sociology

and political theory.1 Legitimacy is usually examined, by political theory, as the result of

rationalized procedures, agreements ornorms, or, by sociology, as the result of an aggregate

of societally constituted attitudes, shared practices or facts. To date, no theoretical outlook

has been developed that persuasively combines these perspectives to account for legitimacyas possessing both a normative and factual dimension, and that provides evidence to explain

political legitimacy in both these dimensions at the same time.2 The purpose of this article

is to offer a paradigm for analyzing the legitimacy of political power which overcomes

the classical dichotomy between normative and sociological inquiry: it outlines a method

for constructing and observing legitimacy that at once acknowledges and elucidates the

normative premises and articulations of legitimacy, but that examines the norms producing

legitimacy in a sociological light as principles whose foundation is not derived from

static normative constructions or asocial models of rational deduction. In particular, this

article proposes a theory of legitimacy that moves beyond the classical distinction between

normative and sociological analysis by illuminating how the norms formative of legitimacycan be conceived as fully societal norms, which are produced as reflexive reactions to

processes of inner-societal formation. In setting out this theoretical method, this article aims to

examine legitimacy in a perspective that preserves the critical potential of normative political

analysis whilst avoiding the elements of self-enabling hypostasis that often characterize such

theory, and that preserves the evidential structure of sociology whilst offering a more secure

sociological grounding for normative discussion of political order.

II. The Antinomies of Theory

At the level of first principles, the question of legitimacy necessarily brings to the fore aset of fundamental methodological divisions between sociological and political-theoretical

analysis.3 Primarily, different normative analyses of legitimacy overlap, first, in the claim

that theory can appeal to demonstrable norms (either substantive or procedural) to validate

its account of legitimacy; second, in the claim that political systems obtain legitimacy if

they integrate social agents under laws to which they accede for motives that they are freely

and rationally able to articulate and justify; third, in the claim that the political system can

be abstracted from its societal setting and its legitimacy externally measured by normative

postulates; fourth, in the assumption that theory can significantly shape the political system,

and that theoretical norms can at once evaluate and determine the structure of the political

objects to which they refer. In contrast to this, different lines of sociological theory concerning

Constellations Volume 18, No 2, 2011.C 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford

OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.


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136 Constellations Volume 18, Number 2, 2011

legitimacy overlap, first, in the claim that legitimacy cannot be assessed in static, or externally

theoretical norms; and second, in the claim that legitimacy must be observed or described

in a broad societal constellation, and that it comprises, not only norms and articulated

agreements, but a variable nexus of attitudes, practices and functions; third, in the claim that

the integrative form of a legitimate political system resides diffusely and subjectively in the

motives of social agents, whose compliance is multi-causal and not transparent to rational

political analysis; fourth, in the claim that theory has limited capacity to structure social

reality, and must content itself at most with a descriptive and observational role.

In offering this oppositional account, it is naturally important to avoid over-simplification,

and to recognize that normative theory analyzes legitimacy in many different ways. Modern

normative theories of political legitimacy have generally been divided into two distinct

approaches. Political theorists identified as liberals tend to consider the question of legitimacy

as a matter concerning the prior moral or legal conditions under which political power

is exercised. Liberals normally espouse a suspicious view of the state, and they argue

that a political system possesses legitimacy if its exercise of power is either determined

or constrained by demonstrably validated norms, articulated as laws, and if it recognizesaddressees of laws as bearers of prior subjective rights, from which the content of particular

laws is deducible.4 Political theorists classified asrepublicans, in contrast, tend to opt for

a more positive view of the state, and they examine political legitimacy as a question of

participatory engagement and active political identity.5 Republicans normally argue that a

political system possesses legitimacy if it obtains the active approval of a majority of citizens,

and if it passes laws that originate in practical agreements between citizens. Naturally, there

are many sub-categories and intermediary variations within these classifications. Special

mention might be made of the distinct, positivist/jurisprudential types of liberalism, which

emphasize the status of positive law as a check on power.6 Similarly, utilitarian analyses

of political legitimacy fall indeterminately between republican and liberal ideas, as theyexamine legitimacy as resulting from both the positive and interventional functions of the

state and the justified expectations and measured entitlements of citizens.7 In the broadest

terms, however, the antinomy between republicanism and liberalism can be observed, at face

value at least, as the main fault-line underlying modern political reflection.

Similarly, sociology also accommodates many methods for approaching legitimacy. In-

deed, there have been numerous attempts to mediate between purely normative and purely

sociological theories of legitimacy. From the side of political theory, for instance, some

communitarian political analyses have borrowed directly from the attitudinal concepts of

legitimacy that are usually seen as specific to sociology.8 Even some of the most influential

normative theorists of legitimacy have rejected models of pure rational deduction, and theyhave attempted to account for the social preconditions of the rationality that produces and ap-

praises the norms that underscore a legitimate polity.9 In addition to this, there are also just as

many distinct purely sociological approaches to legitimacy as there are normative-analytical

approaches, and many strictly sociological accounts of legitimacy possess a pronounced

normative dimension. Some sociologically oriented analyses of legitimacy, clearly, deny

that ideas of political legitimacy can be substantially other than ideology.10 Other critical

sociological theories view legitimacy as an integrative attribute of a political system, which

a particular political apparatus can produce and mobilize as a manufactured and counterfac-

tual resource.11 Other sociological theories, albeit with variations of emphasis, also adopt

an anti-normative approach and view legitimacy as the outcome of the political systems

capacity for appealing to social agents through reference to deep-lying and structurally

embedded symbolic motivations and often barely identifiable social dispositions.12 In a

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A Theoretical Approach Between Facts and Norms: Chris Thornhill 137

different lineage, however, some sociological theories account for legitimacy as a specific

normative property of a political system, arising from the fact that the political system le-

gitimizes itself by referring to norms that are embodied in social or cultural structures and

by integrating social agents in relatively stable and sustainable value-patterns.13 In recent

years, moreover, some sociological analysis has moved close to normative argument in de-

scribing the formative social locations of political morality, solidarity and agreements, and

in examining the sources of political legitimacy as embedded in particular life-practices and

transmitted into law and government from the civil sphere.14 These theories accommodate

aspects of political-theoretical arguments in claiming that, in order to be legitimate, a political

system must express an identifiable and articulated normative content.

Despite this, however, normative and sociological analyses of legitimacy are always

separated by certain underlying methodological and evidential distinctions. Above all, these

distinctions are reducible to problems concerning the claims and status of theory. For the

sociological view, the normative belief that theory is able to prescribe norms for evaluating

legitimacy or significantly to adjudicate between opposing accounts of legitimacy appears

as an unreflected residue of political metaphysics, in which theory idly posits itself, outsidethe social world of facts, as a final point of arbitration and absolute objectification. For

sociological inquiry, in consequence, normative analyses of legitimacy contribute little to

the explanation of the factualor motivationallegitimization of power, and they suffer from

acute and improbable conceptual literalism (that is, they navely assume that simple concepts

or prescriptions can generate plausibly overarching or even enforceably valid analyses of

social processes). In deriving the standard of legitimacy from a socially withdrawn realm

of norms, therefore, these analyses burden theory with a degree of externality to its objects

that renders its insights unsustainable, and they struggle to produce evidence of legitimacy

that might be applicably translated into the realm of objective political facts. The central

problem of normative analysis, thus, is (for sociology) most essentially aproblem of theory: inelevating theory to the level of prescriptive purism, normative analyses undermine theorys

capacity for interpreting, explaining, and proposing valid criticism of particular political

conditions. In response to this, however, the objections to sociological theory in normative

analysis are also well known and they run along the same methodological fissure. Central

to the rejection of sociological inquiry in normative theory is the claim that sociological

theories have the common deficiency that, in focusing on the analysis of practices andfacts

instead of agreements andnorms, they struggle to develop generalized theoretical constructs

for accountably defining what is and what is not legitimate in the exercise of power. As a

result, they fail, in the final analysis, to give reliable conceptual substance to the principle

of legitimacy.15 The hostility of normative theory to sociology is thus also finally reducibleto aproblem of theory: in curtailing the capacity of theory for measuring societal forms by

abstracted and defensible criteria, sociology (for normative theory) deprives theory of its

ability to provide evidence positively to determine, or to measure the absence of, legitimacy,

and it reduces theory to a level of highly contingent and variable description.

III. A Necessary Dichotomy?

If viewed from within an established methodological paradigm, the tension between these

methods appears insoluble, and theory must simply elect whether to position itself on the nor-

mative or sociological side of this divide and then content itself with analyses pre-determined

by this choice. If this position is accepted, theory must remain within its traditional anti-

nomies, it must accept that its accounts of legitimacy are persuasive only to those who accept



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its prior methodological structure, and it must fall short of an encompassing (that is, factually

and normatively evidenced) analysis of legitimate power. Alternatively, however, although

classical normative theory is surely premised in a necessary hostility to sociology, theoret-

ical sociology, if it reflects on its own foundations, might of itself mark out a path beyond

the antinomies of normative and conventional sociological inquiry. Indeed, the occlusion of

sociology against normative inquiry reflects, not only a constitutive methodological distinc-

tion, but also, arguably, a failure in the theoretical obligations of sociology qua sociology,

which sociology might be pressed to overcome. Sociological constructions of legitimacy that

devalue normative analysis, in other words, might be seen, in varying ways, arbitrarily to

close their inquiries against certain primary objects of sociological observation: sociological

analysis might need to assume a more refined normative sensibility to political norms in

order to fulfil its explanatory commitments as sociology, and this, in turn, might yield an

overarching theory of legitimacy able to satisfy different methodological standards.

First, for instance, sociological accounts of legitimacy that denigrate normative principles

ignore specifically sociological questions concerning the function of theoretical norms that

attach to politics, and they impede examination of the structural or functional motives forwhich societies tend to explain their political operations in normative categories. For example,

it might be observed as a general objective pattern across modern societies that political

systems usually attempt to articulate both their foundations and their policies in reference

to relatively generalized normative concepts, and they usually express their legitimacy in

normatively formulated principles. Sociological theory that does not engage with the salience

of norms in the grammar of modern politics thus restricts itself against a crucial and constant

set of social phenomena: it might, as sociology, properly consider itself obliged to elucidate

the societal functions and causes of political norms, and even to reflect on (and produce

evidence for) questions concerning the relative legitimating force of different normative

structures. Second, more importantly, sociological analysis of legitimacy that depreciatestheoretical abstraction and derides political theory for its normative externality to its contents

also closes itself against a further phenomenon that is structurally vital for modern society:

that is, it neglects to observe the complex and often functionally non-explicit ways in which

theory (and its normative content) relates, and is in fact integral, to factual processes of social

and political formation. In this connection, it might also be observed as a general objective

pattern across modern societies that political systems are widely constructed as objects of

normative theoretical reflection, and that theory resonates through, and in fact objectively

tests and pre-constructs, the factual terms in which the legitimacy of political systems is

envisaged and accepted through society. The objective content of theory, therefore, might

equally be seen as an essential focus of sociological inquiry into political legitimacy, andsociology that does not analyze the formative role of theoretical norms in modern politics

also falls beneath the required level of social explanation.

In other words, sociological theories of legitimacy often denounce the abstraction of

theory, and its normative conclusions, in analytical political inquiry. Yet, in so doing, they

neglect to reflect on the interwovenness of theoretical norms and the factual conditions of

political legitimacy itself, and they consequently exclude from their view a key group of

social functions. On these grounds, common sociological approaches to normative theory

might easily although in apparent paradox be seen to suffer from the same conceptual

literalism and even the metaphysical reductivism that they habitually reject as a characteris-

tic of normative theory. The sociological devaluation of theoretical norms in politics in fact

implicitly accepts normative theorys own self-construction: where it dismisses normative



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theory as simplistically literal and prescriptively external to its object and so as critically ir-

relevant, sociological theory also accepts and founds its analyses of legitimacy on the implied

precondition that normative theoretical debates are conducted as metaphysically disengaged

from social process. In consequence, such theory fails to examine, or even to detect, the

socio-functional meanings that are contained within the literal meaning of normative theo-

retical arguments about politics and legitimacy, and it neglects to discern the internal integrity

between theoretical norms and the political objects that they construct. Arguably, therefore,

sociological views of political legitimacy that depreciate norms and the normative postulates

of theory are perspectives that have not yet reached a condition ofconclusively sociological

reflection in respect of theory. In their inherited opposition to deductive normative inquiry,

these views fail to observe the specifically sociological and functionally internal operations

of political norms and normative theories concerning legitimacy. Like the normative theo-

ries whose reductivism they reproach, they fail to construe legitimacy, in all its dimensions

(both factual and normative), as a comprehensively socialphenomenon. When sociological

critiques diagnose a problem of theory in normative analysis, in short, this is in large part a

problem that sociology produces for itself, and it results from the fact that sociology remainsobligated to the conceptual premises that it opposes: that is, that it has not yet become fully

sociologicalin its analysis of norms and theory. A full appreciation of the sources of political

legitimacy, however, might depend on the ability of sociology to overcome this self-created

problem, to adopt a perspective ofdouble reflexivity towards theories engendering political

norms, and to interpret theory and theoretical norms from a less literally constructed vantage

point.

On this basis, this article proceeds from the claim that the methodological division between

sociological and normative accounts of power and legitimacy can only be overcome through

aself-correction of sociology, and that this self-correction is indispensable for a non-aporetic

view of legitimacy. As declared above, this article develops this claim to provide an analysisof political legitimacy that aims to avoid the evidential aporia that both normative and

customary sociological inquiry detect in each other. To fulfil this objective, this article seeks

to present a theory of legitimacy that isfully sociological(not literal or metaphysical), and it

claims that the normative and evidential aporia in other theories result, in the final analysis,

from their sociological under-reflection. To elaborate a conclusively sociological account

of legitimacy, then, this article proposes a theory that examines the legitimacy of a political

order in society by focusing neither solely on its factualsociological preconditions nor on its

abstractednormative prerequisites, but by observing how the factual conditions of powers

organization and the theoretical principles of normative political reflection interact with

each other in order to produce political conditions that are experienced, and can be broadlydetermined, as possessing legitimacy.

On this account, political legitimacy has a primary functional dimension: it resides in

certain functional attributes of a political system. In particular, legitimacy results from the

ability of a political system to adapt to its functional objectives, to provide political perfor-

mances that are accurately adjusted to the specific structure of a given society, and generally

to use power in a manner that effectively stabilizes the social environments in which it is

located. Moreover, legitimacy is a functional resource that depends on the ability of the

political system to apply power in relatively simple, consistent and self-reproducing fashion,

reliably toincludecertain societal exchanges in the transfusion of power, and to presuppose

reasonably even compliance through society without over-intensified politicization or partic-

ular mobilization. This functional aspect of legitimacy, in its implications for specific social

agents, is likely to be observable as a condition in which a political system enforces decisions



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that create conditions of stability, effective and differentiated inclusionary integration, and

predictable motivation throughout society. To capture this functional aspect of legitimacy,

however, it is necessary to qualify legitimacy in terms that are internal to a societys deter-

minate motives for needing and circulating power, and it is necessary to view legitimacy as

a resource that is required for the political inclusion (inclusion in power) of a distinct and

limited number of social exchanges. In fact, legitimacy is a resource that a political system

only has to consume and expend under quite specific societal conjunctures and in relation to

quite specific exchanges (those susceptible to regulation through political power), and it is

easily depleted if it is expended on questions that are not meaningfully subject to power. The

functional legitimacy of a political system thus relies, in no small measure, on its ability to

identify and control its in- and exclusionary boundaries in relation to other parts of society,

and, at a particular juncture in its evolution, sensibly to regulate the processes in which it

transmits power across society and in which it intersects with other functions (for example,

law, religion, the economy, or science).

In addition to this, however, this article also argues that political legitimacy has a normative

reflexive dimension: it resides in certain reflexive attributes of a political system. In particular,legitimacy arises from the ability of a political system to provide generalized constructions

of its objectives, to reflect its operations in terms that underline and support its adaptive

exigencies and sustain its societal adequacy, and to describe itself and its power in a form

that facilitates, generalizes and renders probable the processes of political inclusion and

exclusion which it presupposes for its functional adequacy. Indeed, the normative/reflexive

dimension of legitimacy might be viewed, above all, as a pre-emptive intelligence within

political powerby means of which the political system evades uncontrolled inclusion and, by

internalizing generally and normatively articulated accounts of its recipients, pre-constructs

and adaptively simplifies the inclusionary procedures in which its power is utilized and the

social terrains to which it is applied. Both the in clusionary and exclusionary mechanismsrequired for the abstracted transfusion of power through society thus vitally presuppose an

element of normative reflexivity in the political system. In this respect, therefore, although

the normative capacities of the political system are inextricably attached to its functional

dimensions (i.e. norms support the functional operations of the political system, and they

facilitate the proportioned conduct of these operations), political norms also have a certain

abstracted consistency and necessity within society: the adequate and inclusive (legitimate)

circulation of power through society presupposes certain norms, and it would be impossible

without them.

In consequence, this article argues that political legitimacy needs to be observed as both

a functional and a normative political reality: that is, as a condition in which institutionsbearing societys power effectively perform certain basic functions, yet in which they also

reflect themselves in external normative categories that promote the integrity and adaptive

inclusivity of these functions. Additionally, this article suggests that adequate assessment of

legitimacy in both its dimensions presupposes both a specific analysis of societal functions

requiring legitimacy and a specific analysis of theoretical norms articulating legitimacy, and

it argues that legitimacy needs to be seen as a phenomenon that emerges within a political

system when this system adequately and inclusively correlates its practical functions and its

normative-reflexive reserves. Because of this, then, this article also suggests that, in order

to comprehend political legitimacy, it is necessary to pursue a fully sociological approach

to normative theoretical analysis. Therefore, it offers an account of political legitimacy that

also incorporatesa sociology of political theory. Whilst rejecting theorys claim that it can

externally construct or deduce prior norms of legitimacy, this article assesses how, over



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longer periods of time, theory and the normative postulates of theory reflect the functional

exigencies of political power, allow political systems reflexively to explain their adaptive

necessities and to externalize their functions of in- and exclusion, and contribute integrally

to the positive circulation of power (as legitimate power) through society. In this respect, this

theory breaks with traditional (metaphysical) preconditions of both normative and sociolog-

ical inquiry, approaches theoretical norms not (or not only) as derivates of human rationality

that are counter-factually imposed on social reality, but also as constitutive inner-societal

facts, and denies that theory is a medium that literally produces a total description of society,

or a total description of the terms by which a political system legitimizes itself in society.

Political theory, on this account, is an internal aspect of the reflexive dimension of a societys

political system, and it is invariably implicated in the factual production of legitimacy for so-

ciety. Political theory offers to the political system a body of articulated normative principles.

These normative principles permit the political system, in a particular situation, internally

to reflect, adjust to, or even to discard components of its adaptive processes and functional

responses: norms extracted from political theory allow the political system to clarify and

organize its internal functions for itself, and they directly facilitate and cement its adaptiverequirements. Moreover, these normative principles also provide an apparatus in which the

political system can observe itselfexternally, in relation to other realms of exchange in

society: norms derived from political theory allow the political system to describe itself

for society as a whole, to predefine its addressees, and to identify or correct maladjustments

in its self-constructions in society. Above all, theoretical norms provide a set of references in

which the political system can externally project a stable image of the conditions of powers

transmission and reception, and so more effectively include in its functions the constituent

actions and agents of society.16 Theory, in consequence, provides norms for politics, and po-

litical power cannot obtain factual legitimacy in a society without reflexive norms. However,

the normative constructs that theory provides for politics are not abstract concepts to whicha political system is externally or literally (metaphysically) held to account or which monad-

ically distil reliable accounts of the foundations of society. Instead, they are norms on which

the political system has an internal functional dependence, and which express an inner func-

tional intelligence within power itself. To understand political legitimacy, therefore, political

theory must move beyond the traditional (metaphysical) dichotomy between the analysis of

norms and the analysis of functions or facts, and it must comprehend the facts and norms of

legitimacy as integrally related. The perspective required for this is a fully and conclusively

sociologicaloutlook, which interprets even theory itself, and the norms that theory produces,

as a group of reflexively social (and so sociologically constructible) facts. Previous theories

of legitimacy (both normative and sociological) have struggled plausibly to construct theirobject because they have proceeded from an artificially externalized understanding of the

status of theory. It is only where theory, in double reflexivity, observes its position within the

medium of power that an analysis of political legitimacy might be accomplished that evades

the aporia of other perspectives.

In pursuing a factual/normative approach to political legitimacy in this fashion, this

article, as its title implies, claims that the other primary endeavour to propose a normative

theory of society and its political power that surmounts the tension between normative

and factual dimensions of legitimacy,17 namely the one proposed by Jurgen Habermas,

is not fully successful, and it is ultimately inadequate in its sociological construction of

the preconditions of legitimacy. To be sure, if viewed from a classical normative/analytical

perspective, Habermas approach to legitimacy appears to contain a striking sociological bias.

This is the case on two separate counts. On the first front, Habermas argues that the legitimacy



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of public power has the sociological precondition that power (in the state) is constituted by

means of discursive legal procedures that are sensitive to consensually oriented interactions

in society: the production of legal norms able to constitute legitimate power depends upon,

and arises from, factual social situations, in which speech actors secure reflexive agreement

on specific matters of social concern.18 The process through which legitimacy arises from

legality is thus detached from pure-normative or classical-theoretical models of practical

reason: rationality producing norms are embedded in a symbolically formed life-world,

and the rational speech acts formative of legitimating political norms reflect the social

situatedness of engaged participants in discourse.19 At a widest level, therefore, Habermas

indicates that the normative objectives of theory are interlaced with the practical needs of

singular human subjects and collectives, such that the norms of reason form foundations for

legitimate public structures as they facilitate practical-rational orientation and integration

in society:20 reason and practice are never fully separate, and the rational construction of

public/political norms is always shaped by distinct sociological motives. On the second front,

the sociological dimension in Habermass account of legitimacy is also evident in the fact

that he views the ability of participants in discourse to construct normatively generalizable(and politically legitimating) agreements as presupposing distinct societal conditions. This

ability presupposes a pre-occurring socio-evolutionary process, through which the life-world

has been rationalized to the degree that discursive exchanges are validated by statements

requiring general evidence. Moreover, it also presupposes the existence of a public sphere

[Offentlichkeit], in which the communicative acts required for the formation of norms can

occur,21 and institutions, such as constitutions and basic rights, which protect the public

sphere from coercive encroachment.22 It is therefore sociologically essential for the legal

construction of political legitimacy that institutions are present that facilitate the production

of norms and that render the political apparatus of society accountable to norms.

On these separate grounds, Habermas evidently deviates from pure normative analysis,and the legal-normative preconditions of legitimacy are always in part socially constructed.

However, the sociological aspect of Habermass theory of legitimacy can also be accused

of a simplistic and hyper-constructed minimalism. There are again several separate reasons

for this. First, in Habermas account of legitimacy the communicative elaboration of legal

norms that form legitimate power presumes that a society contains certain dimensions of

interaction that are relatively immune to wider patterns of societal determinacy, and that

discourse can produce norms asserting validity claims that can be generalized at a high level

of inner consistency, or even in weak transcendence, across distinct social spaces, as univer-

sally acceded principles for the exercise of power.23 In this respect, Habermas necessarily

imagines human society asrationally centred, and he argues that different realms of humaninteraction are uniformly underpinned and connected by claims expressing simple and so-

cietally indifferent forms of (human) reason. Second, in consequence, although Habermas

claims that power is not a static, zero-sum resource in society and that legitimate power has

a social and normative genesis as communicative power,24 he assumes that the discursive

legal norms producing and measuring legitimate power can be stabilized against power and

that they possess a socially occluded valence as articulations of overarching consensus.25

Third, in the final analysis Habermas account of political legitimacy is also (although Haber-

mas would deeply resent this classification) reducible to the philosophical-anthropological

claim that the normative construction and legitimation of power is sustained by inherent

resources of human beings, and that legitimate power reflects and materializes the primary

socio-integrative dispositions towards solidarity, communication, and consensus that all hu-

man social life (albeit often in suppressed form) incorporates.26 This results in the rather



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socially simplified and even tautological presumption that legitimacy in the public exercise

of power depends on the ability of a political system to respond to and distil certain basic

dispositions that always, although variably, inhere in and constitute the fabric of human

society: the production of norms framing legitimacy depends on the positing of a perennial

human substrate as the setting both for the production and transmission of legitimate power.

The sociological dimension of Habermas account of laws formation of legitimacy and of

the normative structure of society more generally thus lastly rests on the claim that the social

is inherently human, and that the human in society (for some unspecified reason) always

includes rational/normative potentials and rational/consensual orientations. The legitimacy

of power, in other words, is demonstrated through the use of power as human power. The

exact fashion in which a society generates norms, however, is not elucidated in this theory,

and his account ofsociety is sustained by a strategically constructed normative anthropology.

Although it marks the most commendable endeavour to conceive legitimacy as both

normative and factual, in consequence, Habermas approach struggles to envision the object

of legitimacy without reliance on covert normative hypostasis. In this respect, moreover,

despite his attempt to translate practical reason into communicative reason and to viewreason as intricately embedded in variable societal communications, he also ascribes a

socially overarching status to the normative functions of reason. His account of the generation

of norms (classically imputed totheoryor reflexivity) does not place norm-construction on

conclusively societal foundations, and it produces norms in a realm that is evidentially distinct

from the realm in which norms are required to apply. The standard of legitimacy, therefore,

remains socially abstracted, and the ability of theory to distinguish between legitimate and

non-legitimate power presupposes that theory can pre-construct a normative foundation for

itself that is self-identical against the social objects that it evaluates. The problem of theory

that plagues the relation between sociology and normative analysis, in other words, still

persists in Habermas work.

IV. Political Legitimacy as a Category of The Social: A Theoretical History

of Legitimacy

The assumption that supports the sociological approach to political legitimacy outlined here,

and that most especially sustains the claim that the practice and the theory of political

legitimacy are functionally interlocked, can be clarified most effectively through historical

reconstruction. Indeed, historical observation of the gradual evolution of the forms and

discourses of political legitimacy in modern societies can directly illuminate the constitutive

relation between societys factual and normative political facilities. Naturally, it needs to berecognized here that the description of historical formation poses certain meta-level problems

for both normative and explanatory analysis, and reference to historical forms as a foundation

for normative inquiry always begs the question of whether the insights gained through

reconstruction possess exclusively post factum validity. Nonetheless, the analyses below

rest on four assumptions, which, it is suggested, authorize the use of historical/functional

reconstruction to examine political legitimacy and its normative substructure. First, it is

claimed here that modern societies have tended to assume overlapping structural features,

and that certain characteristics (expressly: societal differentiation, functional pluralism, and

geographical and temporal extensibility) are indispensable for the existence of a society

under modern conditions. Second, it is claimed that modern societies rely on their ability

to produce reserves of power in distinct and relatively consistent fashion, that the inclusive

adaptation of political power to the pluralistic structure of modern societies is a primary



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precondition of the integrity of modern society, and that the legitimacy of power is tied to

this process of adaptation. Third, it is claimed that power malfunctions (loses legitimacy)

when it cannot be applied to its (broadly drawn) functions and recipients in a relatively

generalized, recursive, and inclusionary manner. Fourth, as discussed, it is argued that the

postulation of theoretical norms relating to power is an essential element in the adaptivity

of political power, that norms intensify powers inclusionary facets, and that some norms do

this more effectively, adequately andlegitimatelythan others. The explanatory claim of the

historical reconstructions below thus resides in the fact that it aims to indicate (albeit within a

wide set of variation) which functions, in a modern society, require power, which norms allow

power to adjust to these functions, and which norms enable power to perform these functions

in an inclusionary, generalized, and legitimate manner. Underlying this is a claim, contra

Habermas, that functional analysis does not preclude normativity, that a theoretical method of

normative functionalismis sustainable, and that a modern society articulates, preserves, and

legitimizesits political functions in distinct (though variable) normative conceptual form.

Legitimacy in Medieval Europe

European societies first began to express normative ideas about political legitimacy at the

same time that they began to evolve social functions and institutions that we would now

recognize as characteristic of the modern political system. Indeed, the first formulation of

generalized accounts of legitimate power in European societies can be identified in the high

and late medieval period, and this coincided with a dramatic functional transformation of

European societies and a distinctive formalization of the resources of power that these soci-

eties contained. At this stage in their evolution, specifically, European societies experienced,

at one and the same time, an increasingly concentrated abstractionand an increasinggener-

alizationof their political power, as a result of which political power was required to assumea progressively distilled, iterable, and inclusive form. That is to say, at this time European

societies were beginning to locate political power in relatively stable, jurisdictionally central-

ized, and functionally unique and specialized institutions;27 they were beginning to separate

power attached to specifically political actors from power assigned to other social roles and

other social functions (that is, from bearers of ecclesiastical or highly embedded local au-

thority);28 they were beginning to require and to establish instruments to apply power across

time and place, and to resolve locally, sectorally, and temporally distinct problems using

transferable decisions and reproducible procedures.29 Underlying these transformations in

the form of political power, it is also possible to identify a wider process ofsocio-functional

differentiation, which, to varying degrees, determined the structure of all European societiesat this time. The abstraction and generalization of power, thus, was a distinctive political

expression of a wider, more universal process of differentiation between different realms

of social practice. This process stimulated the specific need for societies to utilize political

power as a societal resource, which could be applied across society in a form that possessed

increasing internal consistency and was relatively insensitive to the structural locations of its

recipients.30

These processes had the result, on one hand, that the societies of medieval Europe de-

veloped political systems that were bound closely to the law: that is, this period witnessed

a rapidly intensified systematization and positivization of the law, and political systems

began to rely on law as an internally consistent medium that could simplify and expedite

the transmission of power across widening (geographical and temporal) spaces in society.31

At the same time, however, in this period European political systems also began to require



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an increasingly coherent conceptual fabric for explaining their political functions and for

applying and circulating political power as a distinct and positively iterable commodity. The

fact that these societies were beginning to concentrate power in static institutional locations

and to transplant power across complex inner-societal boundaries meant that these societies

also had an expanding need for a consistent and easily accessible reservoir of concepts to

which they could refer in order to validate, authorize and simplify the application of power

in the growing range of societal and jurisdictional settings in which it was now utilized. As

a result of this, then, it can be observed that the formative differentiation of political power

in the societies of medieval Europe also stimulated a process of conceptual positivization

within power: that is, political power, once autonomously abstracted, began to depend on

formally positivized principles in order to disarticulate, to explain, and reproducibly to apply

itself. This process of conceptual positivization was partly carried out within the law. The

systematic organization of the law and the judicial system in European societies offered

stable norms and formulae for politics that greatly facilitated the positive transmission of

power through society. Indeed, in most cases, the expansion and centralization of European

societies coincided with the formal organization of the law and its judicial apparatus.32

Yetthis process also stimulated a requirement for concepts ofpolitical legitimacy: it generated a

societal need for conceptual principles to explain and underwrite power, and to ensure that

political systems could envision the sources of their authority in a constant, generalized, and

positive fashion and supply a constant description of their power to accompany and simplify

its variable utilization.33

The first general constructs of political legitimacy that emerged in European societies,

in consequence, were articulated in the context of a functional horizon, which arose from

the evolutionary transformation of political power (and other functions) within distinct so-

cieties. The concepts of legitimacy that were promulgated in medieval Europe naturally

displayed many variations, and these positions cannot be homogenized into one uniformoutlook. For example, some early theories clearly asserted that the legitimacy of power de-

pends on religious observance, and that secular power is fully circumscribed by religious

authority.34 Other theories granted slightly greater autonomy to worldly power, but still ex-

plained the legitimate exercise of political power by defining divinely ordained law as the

foundation and limit of governmental authority.35 Other theories argued that the legitimacy

of government depends on its interrelation with consensually formed laws, embedded in

time-honoured social privileges, customs and corporate agreements.36 Other theorists then

began decisively to renounce all religious and conventional ideas of legitimacy, and to ex-

amine political institutions as essentially contingent components of social reality, requiring

positively founded legal and executive structures.37 For all their oppositional variations ornuanced differences of emphasis, however, all these theories had an overlapping point of

reference in the fact that they fulfilled the need of different emergent European societies

reflexively to distinguish specifically political modes of agency, and to develop instruments

and concepts for demarcating and transmitting their power, specifically, as political power:

that is, as a general, functionally distinct, and trans-sectorally inclusive social form.38 All

these theories, in other words, produced a conceptual matrix that enabled societies to reflect

on the fact that their political functions now pertained to an abstracted and relatively inclusive

social domain, that they could not effectively underwrite each act of powers application by

relying on external principles, or on particular agreements or local declarations of consent,39

and that powers distribution through society needed to be supported by general, re-usable

anditerableprinciples. Crucially, therefore, early theories of legitimacy all acted to provide

a framework in which a society could discursively test the conditions of abstraction and



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generalization for political power. In particular, they allowed societies to enunciate a theoret-

ical template that power could memorize for itself in order to preserve itself in a differentiated

form and further to apply itself reproducibly and inclusively, with a minimum of societal

contest, beyond the sectoral and patrimonial boundaries and across the extending regional

and temporal horizons that developing modern societies contained. The functional result of

early norms of legitimacy, in consequence, was that they helped internally to positivizethe

foundations of politics and political power by enabling power to project a constant account

both of its own general source and of the environments in which it was to be used.

It is of particular note in this respect that, for all their differences, medieval theories

converged around the fact that they sawarticulated lawas the premise for the legitimate use

of power.40 These theories insisted, first, that, to be legitimate, power must (in independence

of inner-societal agreements) internalize a legal account of its own necessity; second, that

power must be able to demonstrate, at a high level of generality, the legal reasons for its

application; and third, that each distinct application of power should conform to princi-

ples of (albeit limited) judicial integrity and express justice.41 It is in this respect that the

norms of early political theory contributed most to the factual ability of nascent political sys-tems to legitimize their power, and it is in this respect that early political theories acted most

pervasively to ensure the emergence of power as a socially iterable resource. The primary

norm expressed by medieval legitimation theory that is, the norm of powers attachment

to law in fact rapidly became a principle in which power could at once reflect on itself

and gradually apply itself at a high degree of general abstraction, and the idea that power

had to refract itself through the norms of law greatly increased the inclusionary diffusion of

power through society as a general positive commodity. Indeed, it can clearly be observed

that those late-medieval societies that had a strongly legal/normative tradition of defining

legitimate power were also the societies that were best able to utilize political power in a

fluid and positively flexible manner. 42 In such societies, early theoretical analyses of poweracted specifically to abstract and extend the political resources that these societies had at

their disposal, and they allowed these societies to enter the condition of proto-modernity

with a statutory apparatus that is with an acknowledged ius statuendi that enabled them

to explain, implement and reproduce their power in relatively positive, autonomous and

sectorally overarching fashion.43 In this respect, self-evidently, it is necessary to avoid a

complete relativization of the distinct claims of these theories, which in their own settings

stimulated the most intense controversy. However, it is also important to note that the con-

troversy between early theories of legitimacy was caused specifically by the fact that these

theories emerged at a time when societies possessed an intensified need for legal instru-

ments to abstract and transmit power, and, in different structural contexts, they all providedsocieties with a conceptual apparatus to adapt to this need. Across substantial theoretical

and socio-cultural variations, therefore, early legal norms of legitimacy in medieval Europe

were integral to the functional evolution of European societies and played a decisive role

in the social abstraction of political power as a differentiated resource. The legitimating

construction of politics in legal/normative categories, far from analyzing political conditions

in formally deductive concepts, actively served to dislocate political power from other social

exchanges, to provide positive foundations for its differentiated content, and so to enable

power to distil itself in society as a generalized, inclusive and replicable resource.

In acting to generalize and multiply power in this way, however, it is also important to note

that the legitimatory descriptions of politics contained in early political theory had the further

crucial function that, from the outset, they facilitated the adequate abstraction of societys

politics by helping to reduce the social emphasis required in the use of political power.



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One of the central functional features of early concepts of legitimacy was that, because they

offered principles to identify, and generally to explain power as an abstracted social object,

they also enabled political actors in society to make decisions across relatively expansive

social spaces and geographical territories without being forced in each setting to re-articulate,

re-emphasize or even re-politicize the reasons and motives that first made these decisions

necessary and valid or that gave to these actors the authority to make these decisions. Indeed,

it might be argued that the initial emergence of specifically political functions in society

(that is, the first evolution of manageably abstracted or implicitly collective forms of power

and distinctively political models of administration) depended precisely on the fact that early

conceptual patterns of legitimacy could act to locate power in statically delineated institutions,

to promulgate constant and replicable principles and legal procedures to explain power as

pertaining to and authorized by these institutions, and so to reduce the erratic intensity and,

above all, the local variety of powers formation and of societys contest over power. The first

generalization and abstraction of political power in society, in other words, relied on a closely

correlated de-politicizationof society: that is, it relied on an articulation of societys power

that separated political power from other forms of social conflict, that generalized its useand minimized its exposure to locally and temporally distinct challenges, and that gradually

immunizedsociety as a whole against volatile, diffuse, or functionally amorphous experiences

of politicality. If the positive abstraction and generalized or inclusionary multiplication of

political power were the first two constitutive preconditions of the formation of the politics

of modern society, therefore, both of these preconditions also relied on a restrictive de-

emphasis of societys political power and on a progressive reduction of the number of

decisions and contents in society that needed to be objects of political contest or needed to be

held at a high level of politicization. Concepts of political legitimacy, in articulating general

normative principles of political validity, contributed fundamentally to establishing each of

these preconditions.The legal/normative fabric of medieval political reflection, in sum, played a crucial role in

facilitating the first stages of the adequate politicization of European societies. Indeed, the

abiding concerns of early European political theory most especially its common insistence

that power is contingent on law, that it requires stable and general justifications for its

authority, and that its validity must be enunciated in generalized legal categories might all be

seen as reflexive responses to the original requirement in European societies for a functionally

differentiated realm of politics and for forms of power, centred in this realm, that could be

utilized through society in positive, general, selective, yet inclusively consistent fashion.

The theory of political legitimacy thus first evolved as integral to the political functions of

European societies, and, albeit with great variations, it produced norms that, both reflexivelyand functionally, allowed these societies gradually to contest and to enunciate an inclusive

form for their politicality.

Legitimacy in Early Modern Europe

If medieval political theory first created a normative apparatus to reflect and structure the

emergent form of politics in European societies, the political theories that developed in

the European societies of early modernity, following the Reformation, further elaborated

this function. These theories produced increasingly positive and increasingly flexible and

iterable explanations for political power, and they contributed in greater measure to powers

functional abstraction and inclusive generalization. In particular, the theories of early modern

Europe began to condense around the intuition that the state now existed as a distilled



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focus of political power in society, substantially and permanently distinct both from local

social actors and from singular actors temporarily obtaining a share of the states power,

and that the state needed to incorporate quite specific principles to explain its consistency,

permanence and ongoing self-identity, and so to authorize and accompany (independently)

its acts of legislation. Theories arising from the Reformation, to be sure, tended to contest

the question of legitimacy in the most harshly polarized and deeply controversial terms,

and no fully unifying pattern of reflection can be discerned at this time. Indeed, it might be

seen as a specific feature of the Reformation that, in finally dislodging the state from the

principles of supra-positive law formulated by the Roman Catholic church and demanding

that the state autonomously express and consolidate its foundations, it elevated the state to

a level where it became an object of heightened normative discourse in society, such that

the state was increasingly judged by acutely intensified and deeply antagonistic principles.

Despite this, however, a certain general normative disposition is implicit throughout even

the most adversarial political stances of early modernity, and the normative conviction that

the state must be able to reflect itself as an agent possessing a personality distinct from more

momentary applications of power formed a guiding impetus for theories of this era.First, for example, the theories of legitimacy that were formulated during the immediate

era of the Reformation began to reinforce earlier proto-positive constructions of state power

by placing these on more generally accepted legal foundations. Although retaining a residual

carapace of theocracy, the earliest Evangelical political doctrines tended to converge around

a functional analysis of political authority as sustained by limited practical prescriptions of

natural law.44 Subsequently, the more politically minded protagonists of the Reformation

employed principles of natural law derived from Roman law to provide quasi-secular accounts

of the power of early states, 45 and they began to recognize the state as a legal order that

is supported and legimitized by its recognition and internalization of natural law, and that

perpetuates its own legitimacy, in different settings, by referring to natural law as its owninner essence or legal form. In the early wake of the Reformation, therefore, a practically

constructed natural law, albeit one often suffused with religious symbolism, became the

tentative basis of the states personality, and it began to act as the foundation of the states

statutory freedom, in independence of other (local and ecclesiastical) sources of power.

During the Reformation and its aftermath, notably, many states experienced a dramatic

growth in their need to produce legislation, and their ability to respond to this by introducing

positive statutes depended on their internal normative self-construction.46

In the longer aftermath of the Reformation, then, early theorists of state sovereignty, ex-

emplified in France by Jean Bodin, greatly expanded these emergent theories of the states

positive personality, and they argued that where political power is not condensed indivisiblyin the state society as a whole is prone to extreme conflict and instability. This idea allowed

Bodin to construe societys power, in exclusively functional-political terms, as fully positive,

abstracted, and distinct from other modes of social influence and authority.47 In parallel

to this, the political theories of late-Renaissance humanism also developed the key idea of

raison detatto concentrate and justify the distinction of political power from other social

exchanges, and to provide positivized accounts of power as both socially general and admin-

istratively localized in the state.48 At a subsequent point in this positivizing lineage, Thomas

Hobbes utilized an atypical theory of the social contract to argue that legitimately exercised

power is power that is formed by a common will, and that, if it incorporates such a will,

power can be fully concentrated in the perennial artificial personality of the commonwealth,

it can be transmitted through society in a positively iterable form, and it need admit no ex-

ternal check on its exercise.49 After Hobbes, European political philosophers extended this



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theoretical tendency by recasting earlier principles of natural law to construct an expansive

store of terms to differentiate, justify, and inclusively positivize the sources of political power.

During this period, the corpus of natural law came to constitute a functional vocabulary that

allowed states, within broadly drawn normative parameters, to internalize positive justifica-

tions for their monopoly of power. Samuel Pufendorf exemplified this strategically positivist

tendency in natural-law theory, and he employed ius-natural arguments in order at once to

segregate the state from the church and other external sources of law, to concentrate the power

of the state around a narrow set of functions and legislative tasks, and so positively to liberate

the legislative capacities of the state.50 In each of these cases, in sum, theory helped the

state to assimilate an account of itself as societally distinct, and to store within itself a

contractually or ius-naturally positivized personality from within which it could find and

project a constant support for the generalization and inclusive reproduction of its power.

Naturally, not all theories emerging from the Reformation offered concepts that allowed

the state easily to integrate a positive description of its authority. Post-Reformation France,

for example, witnessed a number of political doctrines that defined the states legitimacy as

determined by absolute laws, which they positioned as categorically external to the state.Indeed, the modern concept of legitimacy was first coined in debates conducted during

the French religious wars. This concept was used to determine the moral obligations of

regents, it construed power as legitimate if compliant with external moral norms, and it

prescribed a requirement for citizens to depose magistrates who acted in contravention of

moral laws. This separation between the state and the sources of its legitimacy culminated

in the notorious Calvinist pamphlet Vindiciae contra Tyrannos, which expressed the claim

that the moral/legal sources of legitimacy are always external to the monarch, and that the

legitimacy of the monarch depends on the most exactingly exterior (natural) legal scrutiny.51

These views were also reflected later (although in rather mollified fashion) in the German-

speaking territories that converted to Calvinism, where, in particular, Althusius argued thatlaws of the legitimate polity must accord with absolute principles of natural right: universal

law, Althusius argued, is the form and substantial essence of sovereignty [majestatis],52

and all members of the polity, including the prince, are bound by such universal law.53

Even in such theory, however, it can still be observed that the greatest emphasis was

placed on the attempt to construct the state as a formal person, and to endow the state with

a legal identity that separated it from all other social actors, and to which it could internally

refer to sustain, to reproduce and to reiterate its particular laws. Indeed, at the heart of these

theories was the recurrent insistence that the legitimate state must personalize itself in a

formal-constitutional order, and that those entrusted with the exercise of the states power

must be bound by the inner principles of this constitutional personality.54 In the Vindiciaecontra Tyrannos, for example, it is argued that legitimate princes are princes who abide by

absolute laws. However, these absolute laws are in fact laws that are contractually given to the

state by the people,55 and which the state internalizes as its own legal-constitutional order.

On this account, thus, the people become the absolute contractual personality of the state,

they confer identity and permanence upon the state that imagines itself as deriving legitimacy

from them, and the state as it at once adheres to and enacts its own personality, assumes a

consistent and articulated internal form from which it can project and generalize its power (for

the people subject to it). Here again, therefore, the core pattern of post-Reformation thinking

namely, that the state must possess a consistent legal identity, and must assume a perennial

distinction against other persons using power (including, if necessary, those singular persons

permitted to borrow its own power) received a specific and vital articulation, and this

principle dramatically augmented the positive reserves of power stored in the state.



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As in earlier theoretical debates, in sum, it can again be observed that, for all their acute

points of antagonism, early modern theories of legitimacy had certain crucial points of con-

vergence. As above, it is necessary to emphasize that stressing the functional convergence of

these theories does not need to entail a relativization of their distinctions: clearly, these the-

ories also reflect an extremely high level of conceptual polarity. At the same time, however,

these theories all responded diversely to a particular conjuncture in powers morphology,

and they offered increasingly positive and free-standing templates through reference to which

power could iterably authorize itself. Both the contractual and the ius-natural doctrines cir-

culating through early modern Europe contained the implicit norm that the state must explain

itself as an organic political construct and a perennially integral legal person, that it must

be severed from all bearers of private or local power, and that it must be able to presuppose

within itself a set of detached legal principles to accompany and simplify the application of

its power and to envisage its political form as a self-reproducing point of address for political

exchanges. In this respect again, theory served to elaborate a conceptual/normative repository

for political power, with which power could articulate and satisfy its heightened need for

autonomy, and through which it could preserve itself as relatively constant and inclusivelyself-identical throughout the altering and widening conditions of its transmission. Even in

the extreme polarization of an early-modern norm-theoretical controversy, therefore, theory

provided a unified apparatus in which power could imagine and apply itself as differenti-

ated, abstracted, and generalizable, through which it could construct itself as a stable legal

personality, able to enforce itself through reference to this inner personality and the needs,

norms, and agreements that it incorporated. All these theories can be viewed as doctrines that

allowed societies to respond to the increasing functional differentiation of political power,

and above all, in using the law to separate the state from particular natural persons (that is,

in translating power into legally concentrated form), acted to ensure that societies acquired

power as an abstracted, positive, and iterably applicable phenomenon.

Legitimacy in the Enlightenment

In the age of High Enlightenment, subsequently, theories of legitimacy continued to perform

analogous tasks for society, and the normative constructs of theory remained integrally

interlocked with emergent socio-political functions. Whereas earlier theories of legitimacy

had focused on crystallizing politics as a societally differentiated and inclusionary realm,

however, doctrines of legitimacy in the Enlightenment assumed the additional function that

they helped societies to describe and stabilize what they constructed as political within awider societal constellation that was marked by an increasing degree offunctional pluralism.

Theories of legitimacy in the Enlightenment consequently served to develop a legitimating

self-construction for the political system that permitted it to continue acting as positively

self-authorizing, yet that also enabled it to reflect itself, in a rapidly evolving and increasingly

diverse society, as co-existent with other increasingly differentiated societal practices and

spheres of functional specification. It is for this reason that the primary models of legitimacy

in the Enlightenment formed the originating history of the normative political outlooks that

are now grouped together as liberalism, and it is for this reason, also, that these doctrines were

deeply preoccupied with the normative problem ofhuman rights, and with the constitutional

codification and enactment of rights.56 Indeed, during the Enlightenment, theories of absolute

human rights assumed the status of a dominant theoretical orthodoxy, and, following Locke,

the idea that each person is a bearer of rights became widespread.



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Conventional liberal analysis usually interprets human rights and constitutional rights

as legally enforced principles resulting from moral norms and externally deduced moral

obligations. Such analysis habitually argues that these principles help to produce legitimacy

for political systems because they place enforceable restrictions on the use of power, and

they ensure that power obtains legitimacy as subject to external moral authorizations.57

Conventional liberal analysis also usually views early theories of human rights as doctrines

that originally raised social awareness about human dignity and that compelled political

systems to be attentive to normatively binding principles of human reason and human

interest. However, the constitutional rights resulting from the age of Enlightenment can also

be analyzed in a far more functional and less humanistic manner. Indeed, the normative

theories of legitimacy promoting rights in the era of Enlightenment can also be seen, as in

the above cases, as fulfilling specific yet non-explicit adaptive and inclusionary functions for

society as a whole, which pure and literal liberal analysis of theory (and norms) struggles to

comprehend. If viewed from a (fully) sociological perspective, in fact, early constitutional

rights and the normative theories that first advocated the institution of formal rights in public

law can once more be viewed as elements of societal self-reflection, whose function was tohelp societies positively abstract, preserve, and generalize an adequate and inclusive form

for their politicality. On this account, rights did not emerge as norms deduced or imposed as

external to societys evolving form. On the contrary, the rights of the Enlightenment were

norms that emerged as objectively adaptive institutions, and, as such, they enabled societies

to shape themselves in a manner consonant with their functional exigencies, and the theories

reflecting on and prescribing rights also developed as internal elements of societys adaptive

political self-description.

Rights performed their functions for European societies in the Enlightenment in a number

of different ways. First, reflecting the main impetus of post-Lockean constitutional theory,58

many societies began during the later eighteenth century to establish constitutions that en-shrined a body ofsubjective or human rights.59 These rights served as principles to which

states could simply refer to account for their social origins and distinctive legitimacy, and to

concentrate their political power in increasingly abstracted form. As they examined them-

selves as recognizing human rights in their constitutions, states could both internalize and

display a fully generalized and unquestioned description of their power and its formation,

and this allowed modern societies to ensure that their power was not forced constantly to

adjust to varied circumstance or to redefine itself, and to condense power, authorized by

inclusionary reference to its addressees as general rights-holders, in unitary states. Human

rights, although often construed as results of normative deduction or political emancipation,

thus evolved as primary guarantees of powers positive autonomy and institutional con-centration, and they allowed bearers of power to articulate highly autonomous legitimating

foundations. This had particular importance in settings in which states were constructed on

new or highly uncertain social terrains, and, at a functional level, it is no coincidence that

rights sustained both governmental legitimacy and the process of institutional consolidation

in the revolutionary transitions in both America and France in the late eighteenth century.60

Second, during the Enlightenment a body ofsubstantive or particular rights was also

established in state constitutions, and these offered legitimacy to states that gave formal legal

recognition to certain activities that were identified as belonging outside the political system

(for instance, rights of free movement, rights of free expression, rights of free contract,

rights of free labour, rights of free ownership, rights of free scientific inquiry, etc). In this

respect, rights acted to delineate the social activities and attributes that they protected as

categorically private and not political, and consequently as exempt from direct political



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prerogative or encroachment. Rights thus, manifestly created, or at least sanctioned, spaces

of human liberty and autonomy throughout society, and they acted to preserve a sphere of

free human action against political colonization. In this literal sense, these rights can be seen

(in the classical liberal sense) to have provided legitimacy for political systems by ensuring

their legal recognition of basic human needs for freedom. At the same time, however,

these rights also had other less obvious functions, and, in demarcating distinct spheres

of social autonomy from the state, they also offered important functional and adaptive

services to the political systems of European societies. In particular, substantive rights

allowed emergent political systems to reflect the fact that other parts of their societies were

also rapidly approaching a high degree of functional autonomy and differentiation, and so

to define and stabilize their functions of inclusion and exclusion in relation to other spheres

of social exchange. In the perceptibly transformational conditions of Europe in the age of

Enlightenment, therefore, these rights enabled states, against a highly differentiated general

social landscape, adequately to identify and classify what they could and what they could not

reliably construct and integrate as pertaining to politics, and so to preserve and objectivize

the differentiation of their political resources in a manner proportionate to the increasingdifferentiation of society as a whole.61 Indeed, in sanctioning certain private freedoms as

statutory rights, political systems of the Enlightenment were able to remove large swathes of

latent social conflict from the realm of political regulation, and they obtained a device that

ensured that they could confine their acts of jurisdiction to that group of (quite restricted)

social functions which they could effectively distinguish and accomplish as political. The

separation between the private sphere and the public body of the state that was implicit

in the substantive rights of the Enlightenment was, in short, a principle that facilitated the

construction of states as differentiated inclusionary political actors. Although this separation

is now habitually viewed,a la Habermas, as a public/discursive opening between state and

society, which heightened the accountability of the state to the normative resources of thepolitically engaged citizenry, this can equally well be viewed as the outcome of a process

that states (or political power within states) enacted for their own inner/functional motives.

The rights of the Enlightenment in fact helped the state functionally to disarticulate itself

from other spheres of interaction, and they strictly focused state power on a series of core

operations.

Third, during the Enlightenment a body ofprocedural rights was also instituted in state

constitutions. These rights protected the equality of all persons before the law, and in partic-

ular they stipulated that legitimacy could only be attached to states prepared to process all

cases brought before the law in equal fashion. These rights also originated in the theoretical

corpus of the Enlightenment, and from Locke to Abbe Sieyes to James Madison, the assump-tion was prevalent that the legitimacy of the state depended on personal rights of procedural

entitlement, especially in judicial matters.62 Naturally, in a literal perspective, these proce-

dural rights greatly enhanced a general trust in the law, and they reinforced specific social

(or human) freedoms against violation or unwarranted political intrusion, and they enshrined

the legitimatory principle that all those subject to law were recognizedwithin the law. At

the same time, however, these rights also fulfilled less manifest functional requirements for

society, and they once again helped European societies to adopt a sustainable positive form

in which they were able to use and inclusively apply their power. Central to these proce-

dural rights was the maxim that laws should be applied to persons without regard for their

status, sectoral peculiarities or particular structural distinction. These rights thus imputed

generalizable legal titles and generalizable subjective status to all social agents, and they

ensured that all persons subject to the law were addressed in like manner and accorded with



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legal claims. This had the consequence that, through the imputation of rights, all laws were

expected to recognize their addressees as legal subjects, or even as citizens, that all laws

incorporated a fully generalized and uniform image of their addressees, and, as a result, that

laws could be applied to the most diverse social actors in a formally routinized manner. Be-

yond their literal function of ensuring equal access to legal justice, therefore, the construction

of laws addressees as bearers of rights had a greatly alleviating impact on the procedures

in which states used their power, and the idea of the legal subject or the citizen could be

employed to form a clear and easily permeable periphery between the political system and

other spheres of social exchange. This, in turn, allowed states pre-emptively to organize their

power, and it greatly simplified the process through which states could positively generalize,

and a society could be transfused with, political power. In fact, the citizen came to act as a

simplified channel of transmission between state and other parts of society, which had the

result that power could be easily circulated and could easily explain its circulation, and that,

as citizens or rights-holders, particular social agents could be held accountable to power in

highly predictable, simplified and constantly replicable terms.

The formal inscription of rights in (or as) the social periphery of political power, inconsequence, might be seen as the final stage in the abstraction, the positive/inclusionary

generalization and the de-emphasis of societys power, which had originally accompanied

and shaped the first formation of distinct political resources and distinct political theories

in European societies. By tracing their perimeters through rights, European states finally

reached a position in which they could abstract power as thoroughly positive and specifically

political, in which they could internalize a positive and static account of their powers

validity, in which their power could be inclusively applied through society in a constant and

structurally indifferent fashion, and in which only minimal levels of emphasis and political

controversy were required for powers application. In all these respects, the rights, the rights-

based constitutions, and the normative theories of rights that ran through the Enlightenmentserved greatly to support the abstraction of political power, and to multiply the volume of

generalized and iterable power contained and utilized in European societies. Indeed, it is

no exaggeration to say that the modern positive form of power depends on the existence of

rights, theoretically formulated and constitutionally implemented during the Enlightenment.

On this basis, the political theories of the Enlightenment, mainly using normative argu-

ments to insist on constitutional rights as foundations of legitimacy, contributed (factually)

to the legitimization of power in European societies in a number of varied ways. This can

be observed first of all in the functional dimension of legitimacy. The norms contained in

these theories provided an articulated apparatus in which societies could objectivize and

adapt to their need for increasing internal plurality, and they allowed societies to constructtheir reserves of political power as functionally adequate to the increasingly differentiated

autonomy of other realms of practice in their social environments. Indeed, the theories of the

Enlightenment brought to completion the more general sociological function of normative

political reflection: that is, they reinforced the evolution of a differentiated and generally

inclusive form for the politics of society, they marked out the inclusionary and exclusionary

limits of the political system in relation to other social systems, and they allowed politi-

cal systems specifically to define what had to be constructed as political in a society. This

meant that, because they stored positive normative resources produced by theory, societies

obtained political systems that were likely to react effectively and plausibly to their so-

cial environments, they evolved political systems that assumed capacities for making fluid

binding decisions and for adjusting quickly and proportionately to social changes, and they

developed political systems that were able to include particular social agents in accountable,



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pacified, and reproducible manner, and so to apply power through society without encounter-

ing destabilizing resistance. In this respect, the norms of legitimacy promoted in the theories

of the Enlightenment secured a basic functional and motivational condition of legitimacy

through society, fitting the terms of legitimacy usually invoked and described by sociological

analysis. At the same time, however, the theories of the Enlightenment also contributed to

the emergence of legitimacy in its more expressly reflexive dimension, which is commonly

constructed through normative theoretical analysis. The norms of theory produced in the En-

lightenment created a situation in which, in allowing societies to generalize and reflect on the

pluralistic application of their political power and to project norm

Thornhill Political Legitimacy

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