Ratio Juris. Vol. 2 No.

2 July 1989 (202-10) copyright 0 Aulis Aarnio 1989'

On the Legitimacy of Law: A Conceptual Point of View*

AULIS AARNIO
Abstract. The author outlines a conceptually oriented rational reconstruction of crisis tendencies in modem law. The connection between problems of legitimacy and the notion of rationality is emphasized and topics involving both the theory of communicative rationality and the theory of practical reasoning (especially in law) are discussed. The author concludes that a theory transcending the traditional approaches is needed. Otherwise, we shall not be able to face the questions of jurisprudence in the future, especially as regards an assessment of the relations between law and morality, between law and society and finally between law, legitimacy and democracy. *

1. The language of the legitimacy of law has an interesting dual meaning. Ordinarily when one speaks of legitimacy, one refers to the legitimacy of an activity or institution that is determined by law. It may, for example, be a question of a political mechanism, the administrative machinery or an individual decision in the administration of justice. The concepts are used in this way for example when we ask whether or not the authority of a certain government in state S is legitimate. In this perspective, the legitimacy of law is something else. When this is at issue, we consider either the legal order as a whole or the result of the legislative process, an individual statute or an individual provision. We could also restrict the problem to norms that develop through customary law. This would be the case for example when the question of legitimacy is raised in connection with the problem of desuetude. In the following, I shall restrict myself to examining the question of legitimacy primarily from this second perspective. This is because the discussions at our
This paper is a survey which does not contain any of the author's material standpoints on the issues raised at the Symposium, but aims to trace the structure of the problems and the conceptual frameworks in use. * * Abstract by M. La Torre.

On the Legitimacy of Law

203

symposium were essentially focused on the legitimacyo legal norms. Ultimately, f what we were - and are - discussing is the legitimacy of the legal order. However, the conclusionsderived from this discussion can also be applied, mutatis mufandis, to an analysis of the legitimacy of activities, procedures and institutions.
2.

Kaarlo Tuori has limited his analysis of the problem of legitimacy to modern law. This restriction is not intended to imply that there would not be problems of legitimacy with law in general, or with the law in the past. The restriction is used solely to emphasize that the problem of legitimacy may be a particularly acute one in post-industrial societies, such as in the member states of the European Community and the Nordic countries. There are many reasons for this. The primary one is the dynamics of society (in particular the speed of change) which have raised a number of problems that were unknown to societies as recently as the turn of the century. Naturally, the most important theme in development is connected with the increasing role of the State throughout society, and with the birth of the so-called welfare states. The discussion on the legitimacy of modern law is apparently encumbered by an ambiguity over the difference between the concepts of a legitimacy crisis and of a crisis tendency in legitimacy. Allegations to crises generally contain empirical claims about the state of a certain society at a certain point in time. If the criteria for defining something as a crisis have been given, the claim can be tested with the help of empirical information regarding the society in question. In distinction to this, an examination of crisis tendencies does not necessarily involve the statement that a crisis of legitimacy exists in the society. In this sense, allegations or crisis tendencies are not primarily empirical. What is involved is an attempt to discuss a concept of society with the help of an analysis of certain possibilities of development. Whether or not the tendencies as such are realized is not the primary problem of an analysis of the tendencies. On the other hand, it is also obvious that claims regarding crisis tendencies cannot be presented in the absence of empirical information. We must know the history of the society and its present situation in order to be able to conceptualize its possibilities of development. It is in this particular sense that an analysis of crisis tendencies is always based on empirical knowledge, as well.' However, the essential point is that the focus in a discussion on tendencies lies in the conceptualization itself. Jiirgen Habermas's distinction between the System and the lifeworld, with its associated concepts, can be mentioned as a good example of this. It helps us in recognizing the problems and forming an overall view of the prevailing societal reality. Without such conceptualization, we would have no idea of how to ward off or control the threats to legitimacy.
I owe a particular debt of gratitude for these ideas to Professor Hakan H y d h with whom, in Lund in November 1988,I had the opportunity to engage in an extensive discussion on the problems of legitimacy.

204
3.

Aulis Aarnio

In short: The following analysis will focus on the structural theme of crisis tendencies threatening modem law, and clarification of the basic concepts needed in this. The structuration is pursued by way of the following conceptual framework (see figure), which also presents in a simplified manner the internal logic of my presentation and - I hope - the central issues in the discussion at the "Legitimacy of Law" symposium. It is also the purpose of the figure to outline such themes of future discussions that are likely to be closely related to the problem of legitimation in society.
BASIC CONCEPTS
1. Legitimacy of Law (in general) 2. Legitimacy in Modern Law 3. Legitimacy Crisis in Modern Law vs.

/
Descriptive Theory of Crisis Tendencies

Crisis Tendencies

Crisis Tendencies in Internal Rationality of Law

3\
Crisis Tendencies in Subject Rationality of Law Crisis Tendencies in Norm Rationality o Law f

Normative Theory of Crisis Tendencies

Rational Reconstruction of Crisis Tendencies

/ 1 vac
I
Rationality
- c - ? . - - L

Problems

of

Formal/Substantial Rationality

Instrumental Rationality

Communicative Rationality

- institutional r. - juridical r. - systemic r.

/

- value r.

- goal r.

The Theorv of Practical

I ,

Moral Discourse Ethics

d
Philosophy

Legal Reasoning

7
Discourse Context of Justification Law Appllcation

Socio-Economic

/ \ Morals

/ \

Reasoning (Deep JustiOf fication) Law and Morality Descriptive / Theory

/\
Lawgiving
/------

Rational Reconstruction

Context of Discovery

Positive -Negative Maximalist Minimalist

P \

\ Normative

Doctrinal Study of Law (Legal Dogmatics)

O n the Legitimacy of Law

205

In principle, there can be three types of theory on crisis tendencies: descriptive, prescriptive (normative in the strong sense) and rational reconstruction (normative in the weak sense) (Aarnio 1987, 47ff.). The first only describes general developments in prevailing societal reality and in the legal order regulating this reality, and makes predictions about what is to come. It thus describes and predicts. Such an analysis is always empirical in the sense this notion is generally understood for example in the empirical social sciences. Prescriptive theory presents norms, stipulative definitions or recommendations of how things should be or, alternatively, how things should be analyzed. In the following, I shall leave both of these approaches aside and focus solely on the rational reconstruction of crisis tendencies. In so doing, it is my intention to explicate, by means of theory, what already subsists in our language and in our culture. The test of rational reconstruction is not directlyempirical. We cannot verify or falsify rational reconstruction by means of the methods of empirical inquiry. The only test lies in whether or not the reconstruction is in harmony with all (else) that we know about language and culture. The point of the test, in other words, is whether or not our reconstruction fits in well with our conceptual puzzle of culture and society. If this is the case, then the reconstruction helps us in systematizing reality better than what would be possible without such reconstruction. In Kaarlo Tuoris presentation, rational reconstruction has three parts or elements. He speaks of crisis tendencies in the internal rationality, subject rationality and n o m rationality of the law. The problem of legitimacy can thus show itself in all three respects (or in only some of them). The concept of internal rationality is connected with the legal system, with its internal systematic connections. It is well known that the set of legal norms is controlled by way of certain basic concepts and deductively derived subconcepts. The term general doctrines is a somewhat vague albeit characteristic expression for this conceptual structure where the system ties have a central role. We speak, for example, of the general doctrines of civil law, criminal law and constitutional law. To simplify matters somewhat, we could say that the general doctrines are a system core lying in the background of an often disparate set of norms, in effect a sort of model for thought and network of concepts, a network allowing us to bring together the individual provisions. The normative elements may and do change in the course of societal dynamics, but the system core may remain intact for considerably longer periods o time. It is, as it were, f the core of legal thinking. The internal rationality of law is threatened by a crisis when (and specifically when) the systematic ties begin to disappear from the set of norms. It would appear that such a tendency now exists in the social welfare law of welfare states; it exists even in parts of such core areas of law as civil law. Law is fragmented into disparate sets of regulations where problems that arise are fended off by adopting new sets of regulations without taking into consideration the systemic connections between different norms. This danger also appears when so-called flexible norms and various norms of equity begin

206

Aulis Aamio

to find their way into law to a large extent. They are usually conducive to rather casuistic administration of justice, a process which, in turn, speeds up crisis tendencies in internal rationality. The circle is complete. A crisis tendency in subject rationality is involved when there is a disproportion between the need for regulation of the subject on the one hand, and the existing regulation on the other. This could mean either that the normative material expands too much or that a specific field (for example the position of entrepreneurs in society) is regulated in excessive detail. When this takes place, the subject's sphere of freedom is restricted in a way which diminishes the spontaneity of action and raises barriers to the responsible and self-initiated self-fulfillmentof the individual. Both problems are typical of advanced welfare states. In political usage, one often speaks of a "guardian state" when the problem of subject rationality is at issue. Also this topic theoretically involves the problem of the tension between the System and the lifeworld, and of the intrusion of the System into the everyday reality of people in a restrictive and rigidifying manner. In the Nordic countries, for example in Finland, the expansion of the number of norms has meant, among other things, that a considerable portion of the normative elements have been directed at determining the powers of the authorities to act and the demarcation line between the powers of various authorities. A study carried out in 1985 showed that about 50,000 normative regulations were in force concerning the internal relationship of the middle-level administrative authorities alone, At the same time, the regulation, for example in social welfare law, of the rights and obligations of the individual citizen was considerably less effective. The over-regulation of business law mentioned above has resulted in a situation where it is quite difficult for the individual entrepreneur to find his or her way through the thicket of provisions. It has been necessary, on the one hand, to have control mechanisms to oversee compliance with the norms, and on the other to have advisory organizations to prevent violation of such norms. When one adds to this the rapidly ballooning planning machinery, it is easy to understand where, from the point of view of the legal order, the seed of the crisis in so-called subject rationality lies. In any case, one is justified in speaking of a tendency that is growing stronger along with the continuous expansion in the number of norms. Norm rationality is connected with the legitimation of law in society. Law (or its individual element, a norm) can achieve legitimacy in many different ways. It is a question of instrumental legitimacy when one considers how well a norm has achieved its goal. The rationality of law in the sense used by Max Weber is connected specifically with this relationship between ends and means. Interest-based legitimacy means that a legal provision or a particular regulation is legitimate when it satisfies the expectations of an interest group in a maximal way. In corporative systems legitimacy is often based on compromises between different interest groups, compromises which fulfill mutually opposing goals to an optimal extent. However, the basis of legitimacy may also be - and in

On the Legitimacy of Law

207

practice often is - the acceptability of law or of a norm. In this respect, Niklas Luhmann (1983) has emphasized the significance of general confidence in the system (Legitimation durch Verfahren).A normative regulation is accepted in virtue of accepting the process that produced it (for example the Parliamentary legislative system). Habermass idea of the central role of the lifeworld in legitimation is connected with legitimacy in another manner, which Tuori also emphasized at the symposium we are now dealing with. Habermas specifically connects legitimacy with communicative rationality, in other words with the processes of social integration, socialization and communication that constitute the everyday reality of man. Through this, law and morality also come into close contact with one another, which, in turn, entitles us to speak of the moral basis of legitimacy. It is therefore essential that we keep in mind the close connection between the concepts of legitimacy and rationality. In the above figure this connection is depicted with an arrow. Since rationality, in turn, can be understood in several different ways, the connection between legitimacy and rationality can also be understood in different ways depending on what form of rationality is in question (cf. Wr6blewski 1988).I believe that this aspect has not always been sufficiently recognized, as discussions on legitimacy at times involved unnecessary juxtapositions between concepts that ( a )are based on different concepts of rationality and are thus not compatible (for example, system rationality versus communicative rationality) but ( b )may supplement one another (instrumentalversus communicative rationality). One of the significant steps forward taken in this symposium, in my view, was the increased clarity of the analysis of such conceptual relationships.
4.

Communicative rationality was one of the key issues taken up at the symposium. This form of rationality is manifested in so-called practical discourse, where the subject can be, for example, morality, law or economic life. Consequently, one can speak of moral discourse, legal discourse and socio-economicdiscourse. In the field of morality, the discourse can be focused on either ethical standards or substantive questions of morality. With reference to the legitimacy of law, it is the relationship between law and morality that becomes important. This relationship can be approached theoretically either through descriptive or prescriptive theory. The former describes and explains moral standpoints, the latter takes a material position on moral problems. Prescriptive theory provides material criteria for moral standpoints and, through this, also for standpoints on the law. Many theories in modern natural law can be mentioned as typical examples of material theories. As observed by Ernest0 Garzbn Vald6s in the concluding discussion at the symposium, material theories can be constructed on the basis of either positive or negative morality; furthermore, this is possible to either a minimal or maximal degree. The fourfold table emerging

208

Aulis Aarnio

in this way is quite illustrative and helps us in placing, for instance, theories of natural law in their proper context. However, this aspect did not receive any further attention at the symposium. There is also another, completely different connection between law and morality. This is revealed when we examine legal reasoning. A two-level theory of the latter can be constructed. First of all, it is possible to ask what the ultimate justification for legal reasoning is. Why is legal reasoning possible in general, and what legitimizes its results? Aleksander Peczenik is right in speaking, in this connection, of the so-called deep justification of legal reasoning. This notion involires the philosophical foundations of legal reasoning (Peczenik 1983,187ff.). These foundations, however, cannot be analyzed without examining what the elements of legal reasoning are. More simply: What is legal reasoning? We need a rational reconstruction of it. This is not a question of norms or definitions that would demonstrate what reasoning should be like. The goal is to explicate the constitutive elements of legal reasoning, even if we are not always aware of these elements in our everyday action. We act even though we do not precisely know what the ultimate nature of our action is. The rational reconstruction of legal reasoning may either be directed at how a decision (for example the interpretation of a certain provision) is discovered (the context of discovery) or what arguments are presented on behalf of the result, in other words how it is justified (the context of justification). This distinction has an interesting position in the analysis presented by Klaus Giinther, above all in the way in which he interpreted the theory of practical discourse from the point of view of legal reasoning. On the other hand, for example Robert Alexy and Aleksander Peczenik limited themselves to the problem of justification. It would appear that in the recent discussion on the theory of discourse the latter emphasis has clearly been predominant. Legal reasoning is analyzed as a process of justification, and one seeks to demonstrate what type of process results in a so-called acceptable or potentially acceptable juridical decision (interpretation, decision on a gap in law or application of the law). In many connections, Jerzy Wrbblewski (1988) has emphasized that legal justification is based on three different types of premises: (a) legal norms, (b) directives on the interpretation of norms and (c) values and valuations guiding the use of directives. When the law is applied, the facts in the case are, naturally, also present. Values and valuations are an integral part of legal reasoning, both of the interpretation and application of legal provisions and of consideration in cases of a gap in law. Values are involved, for example, in the following ways. (a) The order of priority among various sources of law is determined on the basis of value judgments; (b) decisions on the basis of analogy and similar chains of reasoning involve, as a matter of definition, value-based choices; (c) goal reasoning always requires a choice between various consequences on the basis of a certain code of preference; (d) finally, values may be "directly" involved. This is the case for example when one seeks to substantiate the concept of so-called "social grounds for an abortion" in a system that recognizes such

On the Legitimacy of Law

209

grounds. In such reasoning, one weighs for example the following viewpoints against each other: the general principles regarding the value of human life, the social well-being of the child and the mother, and consideration of the intrinsic value of the mother as a human being. All of this shows that legal reasoning and values are unavoidably bound up with each other. Part of the values are moral values, and this establishes the connection between law and morality. This connection is relevant when the law is drafted and enacted (the norm is formulated in society), when the law is applied in practice (the activity of the court and administrative application of the law) and when legal provisions are interpreted (legal dogmatics, i.e., legal science taken as an interpretative inquiry). In this regard, two key strands of thought were intertwined in a stimulating way at the symposium. Inspired by the ideas of Habermas, Kaarlo Tuori drew our attention to the legitimacy of law in general and to its norm rationality in particular. His presentation brings forward the social dimensions of law as well as the thematics of the general acceptability of law as important issues. The question is: When and on what conditions is law legitimate? If, in turn, our interest is drawn to legal decision making and specificallyto its justification, the perspective becomes more restricted (is a decision or the interpretation of a norm justified?), but even so, the main theme remains the same. Although our most common practice is to speak specifically of justification, what is actually at issue is the legitimacy of the decision or of the interpretation. In this way, two tendencies, one beginning from the general questions of legitimation and the other emphasizing decision making, find one another. It is my view that neither tendency alone can shed sufficient light on the problem of the legitimacy of law. What we need is exactly what the "Legitimacy of Law" symposium sought: something that transcends the traditional approaches and that places matters in contexts that point out new topics. It is in this direction that one can also foresee many of the great challenges of legal theory in the future: a thorough going assessment of the connections between law and morality, an analysis of the relationship between the dynamics of law and of society, and the genetic, empirical, structural and conceptual connections between law, legitimacy and democracy.
Helsinki University Faculty of Law Department of Civil Law Vuorikatu 5 C SF-00100 Helsinki Finland

210
References

Aulis Aamio

Aamio, Aulis. 1987. The Rational as Reasonable. A Treafise on Legal justification. Dordrecht: ReideI. Luhmann, Niklas. 1983. Legitimation durch Verfahren.Frankfurt: Suhrkamp. (1st ed. 1969. Neuwied am Rhein: Luchterhand.) Peaenik, Aleksander. 1983.Grundlagen der juristkchen Argumentation. Wien: Springer. Wrbblewski, Jerzy. 1988. Principles, Values and Rules in Legal Decision-Making and the Dimensions of Legal Rationality. Paper presented at the Symposium on The Legitimacy of Law,5-7 August, at the Murikka Congress Centre, Tampere, Finland.