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Legality and LegitimacyAuthor(s): Alexander P. d'EntrvesSource: The Review of Metaphysics, Vol. 16, No. 4 (Jun., 1963), pp. 687-702Published by: Philosophy Education Society Inc.Stable URL: http://www.jstor.org/stable/20123969.

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2/17

LEGALITY

AND

LEGITIMACY

*

ALEXANDER P.

D'ENTR?VES

JLhe purpose of this

paper

is to examine the

meaning

of two

key-words

in

political theory

which,

as

their

very

roots

indicate,

are

first

and foremost

legal

words?words

drawn

from the vocab

ulary

of

law,

not

of

politics.

The

subject

of

legality

and

legitimacy

presents

the student

of

law

and

politics

with

a

semantic

puzzle

to

which

it

is

not

quite

easy

to

find

a

clear and

definite

answer.1

We all

know

of

course

more

or

less

what

the

answer

of

the

historian

would

be

if

we

turned

to

him

alone

for

enlightenment.

He

would,

to

be

sure,

begin

by

pointing

out

that

throughout

Western

history

the

two

notions

of

legality

and

legitimacy

have

played

an

important

part

in

political

thought,

providing

as

it

were

two of

its

most

solid

pillars.

Without

reaching

as

far

back

as

the

Greeks,

the

historian

would

probably

recall

to

our

attention

the

distinction,

current

in Medieval and

Renaissance

thought,

between

the

two

criteria

for

establishing

the

rightfulness

of

political

power.

Power,

in

order

to be

"just,"

must

be

both

legitimate

and

law

abiding.

Accordingly,

the

unjust

ruler

or

tyrant

may

be

defined

ex

parte

exercitii

as

well

as

ex

defectu

tituli. His rule

can

be

unjust

for the

manner

in

which

it

is

exercised,

if

he

does

not

keep

within the bounds of legality. But it can also be unjust, and is

inevitably

so,

if it

lacks

that

proper

"title"

which confers

legi

timacy

upon

it.

The

quest

for

that

title,

namely

for

the

ultimate

*

A

paper

read

to

the

Law

School

Faculty

at

Yale

on

December

6,

1962.

1

The

only

specific

treatment

of the

subject

I

know

of

is

C. Schmitt's

little

essay,

Legalit?t

und

Legitimit?t

(1932).

Written

by

a

Nazi

supporter

on

the

eve

of

the

Nazi's

seizure of

power,

it

obviously

presents

a

strongly

biassed

picture

of

the

issues

which the

subject

involves. I

have

attempted

to

clarify

these issues in an article

published

in 1960

("Legalit?

e

legittimit?",

in Studi

in

onore

di

E.

Crosa,

vol.

II)

and

in

my

recent

book,

La

dottrina

dello Stato

(Torino,

1962).

http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp


3/17

688

ALEXANDER

P.

D'ENTR?VES

foundation

of

authority,

has

long

been

the

main

concern

of

polit

ical

theory.

Some

among

us are

old

enough

to

remember

the

time

when

dynastic

legitimacy

was

still

an

accepted

doctrine

in

Europe.

In

our

day,

legitimacy

is

rarely

invoked,

and does

not

seem

to

be

any

longer

an

intelligible

political

principle.

Yet

there

is

still

one

European

statesman

who

does

not hesitate

to

use

it

as

a

prop

for his

political

doctrine,

if

he

has

any.

Shortly

after

his

accession

to

power,

President

de

Gaulle

made

the

startling

claim

that

"for

twenty

years"

he

had been

"the

incarnation

of national

legitimacy."

Some of

his

recent

actions

seem

clearly

to

evince

the view

which

he

once

candidly

expounded

to

an

American

visitor:

that

"legitimacy

does

not

depend

on

legality,

and

legality

is

not

necessarily

a

proof

of

legitimacy."

2

So much

for

history

and

the historian's contribution to

our

problem.

Let

us

now

turn

to

the

social

and

political

scientists.

They

too

have

an

answer

to

our

quest;

the

notion

of

legitimacy

is

a

fairly

familiar

one

in

their

writings.

They

use

it to

illustrate

the

transition from the level of power to that

authority. "Authority,"

in

Mr.

Lasswell's

words,

"is the

expected

and

legitimate

possession

of

power."3

Borrowing

a

phrase

which

was

first

coined

by

a

fellow-countryman

of

mine

at

whose

feet

I sat

as

a

student?Gae

tano

Mosca?modern

political

science indicates

that "the

source

and

basis

of

legitimacy"

is the

"political

formula":

the

body,

that

is,

of

accepted

beliefs

and

values

(also

called

the

ideology)

which,

in

a

given

society,

induce

men

to

obedience

and

to

the

acceptance

of

the

exercise of

power

as

"just

and

proper."

This

at

any

rate?if

I

do

not

misinterpret

his

words?is

the

view which Mr.

Lasswell

puts

forward

in his classic book

Power

and

Society.

In

a

language

more

involved and

obscure,

Mr. Talcott

Parsons defines

"legitima

tion"

as

"the

appraisal

of

action

in

terms

of shared

or

common

values

in the

context

of the

involvement

of

the

action in

the

social

system."

4

One

may

wonder

why

this

kind

of

appraisal

should

be

referred

to

legitimacy

rather

than

to

legality.

The

answer

may

be,

2

Article

by

D.

Sch?nbrun

in New

York Times

Magazine,

Feb.

14,

1960.

3

H.

D.

Lasswell

and

A.

Kaplan,

Power and

Society

(New

Haven,

1950),

S 6.5.

4

T.

Parsons,

"Authority,

Legitimation,

and

Political

Action",

in

Authority,

C. J.

Friedrich,

ed.

(Cambridge,

Mass.,

1958),

p.

201.



4/17

LEGALITY

ND

LEGITIMACY 689

perhaps,

that

political

scientists

are

concerned

with

the

actual

behavior of

men

rather than with the

formal

framework of

their

actions.

At

any

rate,

they

seem

to

leave the

problem

of

legality

to

the

lawyer,

and for

my

part

I

would

certainly

not

be

inclined

to

blame

them

for

doing

so.

But

this

places

upon

the

lawyer

a

further

duty

to

clarify

the issue

of

legality

versus

legitimacy.

It

is

precisely

at

this

point

that

we are

reminded of

some

famous remarks by a no less famous social scientist. Max Weber

has left

us a

brief

but

fascinating

treatment of the

problem

of

legality

and

legitimacy.5

Legitimacy,

or,

to

use

his

own

words,

"the

idea

(Vorstellung)

of the

existence

of

a

legitimate

order,"

is

to

him

a

basic

tool

of social

research,

for

it

is

from

this

concept

that

the

notion

derives,

of

the

"validity"

of

a

given

social

order.

According

to

Weber,

history

presents

us

with

three

basic

types

of

validation

or

legitimation?though

he

warms

us

that

these

types

are never

"pure,"

and lend

themselves

to

manifold

"combinations,

mixtures,

adaptations

and

modifications."

These

types

are:

?

"Charismatic"

legitimacy,

where

the

authority

of

a

single

individual is ascribed

to

the

special

gifts

with

which he is

endowed,

or

believed

to

be

endowed,

as

in the

case

of

a

prophet

or a

hero

(or

for

that

matter,

though

Weber

wrote

before

Nazism,

a

F?hrer])

;

?

"Traditional"

legitimacy,

where

authority

is

derived

from

the sacredness

of

precedent

or

from

dynastic

succession;

?

"Rational"

legitimacy,

where

authority

is

based

on

"a

system

of

consciously

made rational rules

(which

may

be

agreed

upon

or

imposed

from

above),

which

meet

with

obedience

as

generally

binding

norms

whenever such

obedience is claimed

by

him whom

the

rule

designates."

This

type

of

legitimacy

Weber

identifies

with

legality.

In

it,

"every

single

bearer

of

powers

of

command

is

legitimated

by

the

system

of

rational

norms,

and

his

power

is

legitimate

in

so

far

as

it

corresponds

with the

norms.

Obedience

is

thus

given

to

the

norms

rather

than to

the

person."

5

The

relevant

sections

from

Weber's

Wirtschaft

und

Gesellschaft

can

be found

in Max Weber

on

Law

in

Economy

and

Society,

M.

Rheinstein,

ed. (Cambridge, Mass., 1954), pp. 3, 9, 336-337; but see also Weber's Wirt

schaftsethik

der

Weltreligionen,

in

Gesammelte

Aufs?tze

zur

Religions

Soziologie,

vol.

I, pp.

267-268.



5/17

690

ALEXANDER

P.

D'ENTR?VES

Now the

interesting

point

about

Weber's treatment of

legality

and

legitimacy

is

that,

in

his

view,

legality

is

the

prevailing

type

of

legitimacy

in

modern

society.

"Today,"

he

writes,

"the

most

common

form

of

legitimacy

is

the

belief

in

legality,

i.e.,

the

acquiescence

in

enactments

that

are

formally

correct

and

which

have been

made

according

to

established

procedure."

Most

modern

societies,

Weber

points

out,

and

more

particularly

the

modern State, are "legal" societies, societies where "commands

are

bestowed

not in the

name

of

a

personal

authority,

but

in the

name

of

an

impersonal

norm;

and

[where]

in

turn

the

exercise

of

command

is

in

itself obedience

to

a

norm,

and

not

an

arbitrary

decision,

a

dispensation

or a

privilege."

In

short,

we

live

in

a

world

where

the

rule

of

law

is

supreme

or

is

expected

to be

so;

where obedience is

given

to

the

laws,

not

to

the

persons.

We

have

de-personalized

power,

thus

tracing

the

roots

of

authority

to

law

itself,

not to

some

mystical

principle

that transcends

it.

Personally,

I think

that

Weber's

remarks contain

a

great

amount

of

truth

and

that

they

shed

a

great

amount

of

light

on

the

question

at

issue.

I

am

prompted

to

this conclusion

not

only

by

the fact

that,

every

time

I

have

asked

the

lawyers

to

tell

me

the

difference

between

legality

and

legitimacy,

I have

noticed

some

embarrassment

on

their

part,

as

if

my

question

seemed

to

them

meaningless

or

out

of

context.

But

I

am

also inclined

to

agree

with

Max Weber

on

historical

grounds,

since

I believe

that

the

greatest

contribution

which

legal

theory

has

made

to Western

political

thought

was

to

enable

us

to

read

politics

in

legal

terms,

and to conceive of power, and if you like of the "State," as the

exercise

not

of

arbitrary

force

but

of lawful

authority.

In

this

sense

the

Anglo-American

notion of

the

rule of

law,

as

well

as

our

Continental doctrine of the

Rechtsstaat,

are

political

as

well

as

legal

theories:

theories in which

the

best

tradition of

Western

thought

have combined

to

produce

that

notion

of

a

"legitimate

order,"

of

a

State based

on

law,

which

we

consider

one

of the

highest

achievements

of

our

civilization. The

rule

of

law,

not

the

old idea

of

dynastic

allegiance

nor

the modern horrors

of

the

F?hrerprinzip,

is

the

bond that holds modern societies

together.

As Dean Pound once

put

it in a

humourous

vein,

the modern man's

notion

of the

State

may

well

be

expressed

with

a

paraphrase

of the



6/17

LEGALITY

AND

LEGITIMACY

691

Psalm:

"Propter

legem

tuam

sustinui

te,

Domine "?"Because

of

thy

law

am

I

content

with

thee,

o

State."

6

Legality

seems

indeed

to

have

become,

as

Weber

said,

the

modern

equivalent

of

legitimacy.

Now

the

question

which

I

would

like

to

raise

at

this

point

is

a

very

simple

one,

but

one

which

seems

to

me

to

be of the

utmost

importance.

The

question,

to

put

it

in

strictly

analytical

language,

iswhether by subsuming the notion of legality under that of legit

imacy

we

are

not

introducing

a

judgment

of

value

into what

is

in

essence

a

purely descriptive

statement. In

plain,

ordinary

speech,

this doubt

may

be

expressed

even more

forcibly

by

remarking:

it

is all

very

well

to

say,

as

Weber

says,

that in

the

modern

State "commands

are

bestowed

in

the

name

of

impersonal

norms"

and

that

legality

has

come

to

be

considered

as

the best

safeguard

against

arbitrary

power.

But this

may

well

amount

to

nothing

more

than the

account

of

an

historical

fact;

it

does

not

tell

us

much

about

the kind

of

legality

which

alone

can

constitute

that

safeguard,

nor

about the

values

which

we

consider worth

safeguarding.

Are

we

disposed

to

approve,

and

consider

legit

imate,

any

legal

order

as

such,

or

shall

we

reserve

our

applause

for

that

particular

kind

of

order

alone

that

is

established

in

view

of

the

attainment of certain

goals,

of

the insurance

of

certain

deter

minate

values?

Are

we

prepared

to

make of

legality

a

fetish,

thereby

reducing

legitimacy

to

the

mere

respect

of

the rules of

the

game,

without

any

concern

for the

game itself,

whatever its

stake

and whatever its

consequences?

This,

I

believe,

is

the crucial

question which the modern identification of legality and legit

imacy

raises.

I

submit

that

we

must

take

into

account

the

fact

that

the notion

of

legality

is

at

variance

in

the modern

world,

and

that

in

this

variance

we

can

find the

key

of

many

disturbing

diversities

in

legal

as

well

as

in

political

thinking.

Let

me

enlarge

briefly

on

this

point

which

has been

very

much

in

my

mind

ever

since

I have

made

it

a

habit of

crossing

the

Atlantic

every year

and

of

dividing

my

time between

strikingly

different

surroundings.

That such

expressions

as

the

"rule

of

law,"

"government

6

Inaugural

address

by

Roscoe

Pound,

The

Future

of

the

Common

Law,,

Harvard

Trecentenary

Publications,

1937



7/17

692

ALEXANDER

P.

D'ENTR?VES

under

law,"

l?galit?,

Rechtsstaat

are

not

exactly

equivalent

but

carry

with

them

many

subtle shades

of

different

implications,

is

a

fact

that

weighed

heavily

on

the

minds of

the

lawyers

who

met

in

Chicago

in

1957

to

discuss the

problem

of

"The

Rule

of

Law

as

Understood

in

the West."

This

should be

no cause

of

surprise

to

anyone

who

is

aware

of

the

deep

differences

between

the countries

of

Common

Law

and

those

of

the

Roman

tradition.

To

the

Conti

nental mind, law is primarily the expression of a deliberate act of

lawgiving:

"Lex

est

quod

populus

iubet

atque

constituit"

;

"La Loi

est

l'expression

de la

volont?

g?n?rale."

There

is

a

close

affinity,

though

not

necessarily

an

unbroken

continuity

of

thought,

between

the views

of

the

Roman

lawyers

and those

of

the

French

Revolutionaries,

both

with

regard

to the nature

of

law

and

to

the

position

of

the

legislator

as

sovereign.

This

is the historical

back

ground

which

we

must

bear

in mind in order

to

understand

the

Continental

democracies'

interpretation

of

legality

and

legitimacy.

No

doubt,

in

modern

Continental

democracies

the

notion

of

popular

sovereignty

provides

the overall

principle

of

legitimation

of

the

whole

legal

system.

But

the

test

of

legitimacy

of

each

and

every

norm

that

composes

that

system

is

a

merely

formal

one,

namely,

the

ultimate

derivation

from,

and

conformity

to,

the

will

of

the

sovereign.

Legality

is

thus

of

itself

a

token

of

legitimacy.

Such views

have

not

only deeply

affected

our

political

thought,

they

are

reflected

in

many

of

our

institutions.

I need

hardly

remind

you

that,

in Continental

countries,

the

guarantee

of

legality

has

always

been

conceived

as

the

protection

of

the

people

against

the

encroachment

of

executive

and administrative

action.

Strange

as

it

may

seem,

Continental

constitutions

have

long

failed

to

provide

adequate protection

against

the

omnipotence

of the

legislature.7

But

I

am

not

here

concerned

with

Constitutional

Law.

It

is

to

the

particular

reflection

of

such views

on

legal

thinking

that

I

would

like

to

call

your

attention.

I have

found

in

a

passage

of

Tocqueville

a

particularly

apt

description

of

the

attitude

of

the

legal

profession

on

the Continent.

Lawyers,

according

to

Tocque

7

This point is brilliantly illustrated in Professor A. Tune's contribution

to

the Harvard

Conference

on

Government

under

Law

(Cambridge,

Mass.,

1956).



8/17

LEGALITY

ND

LEGITIMACY

693

ville,

"are attached

to

public

order

beyond

every

other consid

eration;

and

the

best

security

of

public

order

is

authority.

It

must

not

be

forgotten

also"?continues

Tocqueville?"that

if

they

prize

freedom

much,

they

generally

value

legality

still

more:

they

are

less

afraid of

tyranny

than of

arbitrary

power;

and,

provided

the

legislature

undertakes

of itself

to

deprive

men

of

their

independ

ence,

they

are

not

dissatisfied."8

At first

sight,

one

would

be

inclined to describe such

an

attitude

as

conservative, perhaps

even

reactionary.

But

I

think

that

it

might

better

be described

as

fundamentally

agnostic.

It

implies

the

deliberate

renunciation

on

the

part

of

the

lawyer

to

pass

any

judgment

on

the

content

of

the

law,

a

conception

of

legality

as

a

matter

of

form,

not

of

substance.

It is

as

if the

lawyer

would

say

:

let the

legislator

take

upon

himself

to

decide

upon

all

major

issues;

let

him

make

the

basic choices

in

matters

of

policy

;

all

I

am

concerned

with is to

ascertain whether

this

particular

rule,

this

particular

decision

is

correct,

whether it

is

law,

no

matter if

I

like

or

dislike it.

"Formalism"

is

an

essential

characteristic of the Continental

approach

to law.9 Modern

legal

positivism

has done

nothing

more

than

to

bring

this

assumption

to

its

extreme

logical

consequences.

I

know

only

too

well

that

the

hold

of

positivism

on

Conti

nental

legal thought

is

a

stumbling

block

to

American

lawyers.

I

feel that

I

must

say

a

few

words

to

explain

that

hold,

and

even,

within

certain

limits,

to

justify

it. To

begin

with,

I

would

like

to

point

out

that

the

blame,

if

blame

it

be,

should not

be levelled

exclusively

against

us

Continentals.

It

was

John

Austin after

all

who

first

drafted what

may

be

called

the

positivist

manifesto.

"The

existence

of law

is

one

thing;

its

merit

or

demerit

another.

Whether

it be

or

be

not

is

one

inquiry,

whether it

be

or

be

not

conformable

to

an

assumed standard

is

another

inquiry.

A

law,

8

A. de

Tocqueville, Democracy

in

America, I,

xvi,

2.

9

Needless

to

say,

"formalism" is

a

very

general

term

which would

need further definition. In the

sense

in

which

it

is used

by

Continental

lawyers,

it

indicates

not

only

a

justification

of

"conceptualism"

in

law,

but

the

tendency

which

I have

described,

to

abstain

from

any

consideration

of

substance

and

to

focus attention

on

the

logical

coherence

of

a

given legal

system. For an excellent analysis of this type of "formalism" I would like

to

refer

to

an

article

by

N.

Bobbio,

"Sul

formalismo

giuridico",

in

Rivista

italiana

di diritto

e

procedure p?nale,

I,

1958.



9/17

694

ALEXANDER

P.

D'ENTR?VES

which

actually

exists,

is

a

law,

though

we

happen

to

dislike

it,

or

though

it

may

vary

from

the

text,

by

which

we

regulate

our

appro

bation

or

disapprobation."10

It

appears

from

these words

that

the

first and

basic

requirement

for

the

positivist

is

an

attitude

of

"ethical

neutrality."

If this

be

so,

surely

the Continental

lawyer

is

predestined,

as

it

were,

to

be

a

positivist.

In countries

where

judge-made

law

is ruled

out,

where

judicial

review is

a

com

paratively recent innovation, the only "existing," the only "valid"

law is

the

one

which is

laid down

by

the

sovereign.

If

this

is

the

background

of

fact,

I

can

think of

two

valid

justifications

of

legal

positivism.

The

first

is

the remarkable

advance which

legal

science?our

proud

Continental

Rechtswissenschaft?has

made

by

adopting

the

positivist

method.

It

seems

to

me

(though

I

am

not

sure

that

many

lawyers

in

this

country

would

agree

with

me

on

this

point)

that

legal

science,

if

it

be

a

science

at

all,

must

necessar

ily

be

"formal" and

"neutral,"

at

any

rate

in

its

method.

The

task

of

the scientist

is

not

to

approve

or

to

disapprove,

nor

to

propose

an

ideal,

but

to

explain,

and

to

provide

an

intelligible

recon

struction

of

a

given

slice

of

human

experience.

In

Herbert

Hart's

words,

"the

analysis

or

study

of

meanings

of

legal

concepts

is

an

important study

to

be

distinguished

from

(though

in

no

way

hostile

to)

historical

inquiries,

sociological

inquiries,

and

the

crit

ical

appraisal

of law

in

terms

of

morals,

social

aims,

func

tions,

etc."

X1

This

is the

aim

that Continental

Rechtswissenschaft

set

out to

pursue,

and

you

must

admit

that

it has

proved

remark

ably

successful.

Actually,

in

its

most

recent and

most

up-to-date

form?that of Kelsen's "Pure Theory

of

Law"?Continental

legal

science

has

succeeded

in

achieving

that

supreme

tour

de

force

which,

to

quote

Hart

again,

is

the

crown

of

the

positivist

method:

to

construe

the

legal

order

as

a

coherent

whole,

and

to

show

"that

a

legal

system

is

a

'closed

logical system'

in

which

correct

decisions

can

be

deduced

from

predetermined

legal

rules

by

logical

means

alone."12

Incidentally,

I

would

like to

point

out

that,

thus

con

ceived,

positivist

legal

science

seems

to

provide

an

ideal

ground

10

J.

Austin,

The

Province

of

Jurisprudence

Determined

(London

1954 ed.), p. 184.

11

H. L.

A.

Hart,

The

Concept

of

Law

(Oxford,

1961),

p.

253.

12

Ibid.,

p.

253.



10/17

LEGALITY AND LEGITIMACY

695

for

one

of the

more

interesting

recent ventures

in

legal

theory

:

the

exploration

of the

uses

of

logic

in

law,

or,

to

call it with

its

per

tinent

name,

of

the

nature of

deontic

logic.

If,

as

Mr. Anderson

puts

it,

those

who

engage

in

it do not

propose

to

offer

support

for

any

particular

system,

but

"to

test

its

internal

consistency,

to

verify

its

logical

adequacy

to

its

declared

purpose,

and

to isolate

and

clarify

the

assumptions

on

which it rests"

13?I

confess that

I cannot see how their premiss and aims substantially differ from

the

"ethical

neutrality"

of

the

positivist.

But

there

is,

I

believe,

also

another

and

more

substantial

justification

for

the

adherence

of Continental

lawyers

to

the

tenets

of

positivism.

The

underlying

reasons

for their attitude

were

brought

into

full

light

during

an

amicable

discussion

held

at

Bel

lagio

two

years

ago,

under

the

auspices

of

the Rockefeller

Foun

dation,

by

a

small

party

of

legal philosophers,

old and

young,

from

both

Europe

and America. The

purpose

of

the

meeting

was

to

assess

the basic

features of

legal

positivism.

It

was

only

on

the

closing

days

of the

conference

that the

English

and

American

participants

discovered the

causes

of

what

seemed

to them the

obdurate

adherence

of

the Italians

to

the

Kelsenian

brand of

posi

tivism.

I

would

like

to

quote

a

significant

passage

from

the

excellent

summary

of

the discussions

which

Professors Samuel

Shuman

and

Richard

Falk

have

written for

the

Journal

of

Legal

Education.

"The Kelsenian

abstractness,"

they

write,

"smoke

screened

[on

the

part

of

the

Italian

participants]

a

strong

commit

ment

to

certain

common

socio-political

positions.

Broadly

speaking, the character of these positions is liberal-democratic,

especially

in

regard

to

the

proper

connection

between

Church

and

State.

.

.

.

Especially

did

it

become

evident that

in

the

background

of

many

Italian

presentations

was

a

desire

to

strengthen

the

legal

order

against

interference

from the Catholic

Church,

either

directly

by

institutional interference

or

indirectly

through

its

advocacy

of

natural law.

Kelsenian

positivism

provides

a

powerful

instrument

to

establish

in

a

neutral

manner

the

autonomy

of

the

13 A. R. Anderson, "Logic, Norms, and Roles," forthcoming in Ratio.

Significantly,

Mr.

Anderson

borrows

these

words from

Church's

Introduction

to

Mathematical

Logic.



11/17

696

ALEXANDER

P.

D'ENTR?VES

legal

order. The

narrowing

of

discretion

to

introduce

external

moral

considerations

into the

legal

process

[was]

said

also

to

have

had

a

beneficial

impact

upon

judicial

practice during

the

Fascist

period,

helping

the

judges

to

resist

pressure

from

the

Government

to

distort the

pattern

of

decision.

Similarly,

it

[was]

considered

by

the

Italians

to

be

a

muzzle of

liberal effects

upon

reactionary

judges

who

would

use

a

widened discretion

to

move

the

law in

a

regressive direction. One learnfed] in this way that wide differ

ences

in

legal

theory

may

rest

upon

a

shared

and

rational

pursuit

of

similar

values;

hence,

one

befcame]

chary

about

criticizing

'an

approach'

to

legal

philosophy

without

a

familiarity

with

the

social

situation within

which

it

flourishes."

14

I have

dwelt

at

length

on

the character

and

implications

of

the Continental

approach

to

law,

in

order

to account

for and

explain

the

reasons

of

the

Continental

concern

for

legality

rather

than

for

legitimacy.

It

would

appear

that

in

countries

where there

are

wide

ideological

discrepancies,

radical contrasts

of

interests,

and little

or

no

agreement

on

basic

values,

the

issue

of

legitimacy

is

bound

to

be

put,

at

it

were,

within

brackets,

or

explained

away

by paying lip-service

to

the

principle

of

popular

sovereignty

as

a

kind

of deus

ex

machina. Ethical

neutrality

provides

the

lawyer

with the

ivory

tower

where

he

can

stand aloof

from

the

turmoil

of

politics.

Legality,

the

certainty

of

law,

is

the

polar

star

that

enables

him

to

steer

a

safe

course

amid

the

widely

conflicting

claims

of

opposing

ideologies.

Let

me

say

now

that

I

consider

the

price

paid

for

such

life-saving

devices

too

high,

and

one

tbat

has

proved

to

be in the end self-defeating. The formal approach to the law is

the

reason

why

the Continental

idea

of

legality

is

something

intrinsically

different

from

the

Anglo-American

notion

of

the

rule

of

law.

It is

also the

reason

why

it

has

not

proved

to

be

a

suf

ficient

guarantee

of

the

values which

you

associate with

that

notion. One

cannot

help

being

reminded

here

of

the fate

that

befell

the

great

German

doctrine

of the

Rechtsstaat

in

the

years

that

preceded

the

advent

of

Nazism.

That

doctrine had been

care

fully

and

even

lovingly

tended

by

generation

after

generation

of

14

R.

A.

Falk

and

S.

I.

Shuman,

"The

Bellagio

Conference

on

Legal

Positivism,"

in

14 Journal

of Legal

Education,

No.

2,

1961.



12/17

LEGALITY

AND

LEGITIMACY

697

scholars.

It

spread

from its

native

land

to

different

parts

of

Europe,

and

was

particularly

successful in

Italy.

In

my

young

days,

it

was

the

official

doctrine

of

our

law

schools,

and

I

have

no

doubt

that

those who

expounded

it

were

sincerely

convinced of

its

inseparable

links

with

the

political

ideals

of

liberty

and

democracy.

But

under the

influence

of

the

positivist

concept

of

law,

the

doc

trine

of

the

Rechtsstaat

was

gradually

and

irreparably

altered.

If

law is nothing else than the formal structure of power, that

formal

structure

is

present

in

any

State,

whatever

political,

social

or

moral

aims

are

embodied

in

the

legal system:

every

State

is,

by

definition,

a

Rechtsstaat.

If

in

the

name

of

neutrality

the

lawyer

must

abstain

from

passing judgment

on

the

content

of

the

law,

if

his

only

concern

is

with its

formal

correctness:

then

all

that

mat

ters to

him is that

the

legal

order

should

be

preserved,

that

formal

procedures

should

be

respected.

Tocqueville's

prophecy

was

ful

filled

many

times.

From the

second

Napoleon

to

Mussolini

and

Hitler

the

appearance

of

legality

was

maintained in

the

setting

up

of

plebiscitar?an

dictatorships.

But

if

on

one

hand

the

myth

of

legality

could

provide

the basis

for

the

subversion

of

the

old

liberal and

democratic

order,

the

notion of

legitimacy

on

the other

hand

was

itself

deeply

affected

by

the

positivist approach

and

the

positivist

method.

Legitimacy

was

made

to

depend ultimately solely

on

a

question

of

effectiveness.

In

the

words

of

one

of

the

greatest

Italian

scholars of

the

period,

"an

illegitimate legal

order is

a

contradiction

in

terms:

its exist

ence

and its

legitimacy

are

the

same

thing."

Santi

Romano,

who

wrote these lines, was

an

adept of the Theorie de l'Institution not

of

the Reine Rechtslehre.15

Yet

his

conclusion

is

strikingly

similar

to

that of

Kelsen's.

The

"principle

of

legitimacy"

means

to

Kelsen

that the

"validity

(of

a

given

system

of

norms)

is

deter

mined

only

by

the

order

to

which

they

belong,"

and

that

'they

remain

valid

as

long

as

they

have

not

been

invalidated

in the

way

in

which the

legal

order itself

determines."

When,

as

is the

case

with

a

successful

revolution,

"the

total

legal

order,

of

which

that

norm

is

an

integral part,

has

lost

its

efficacy,"

this

only

indicates

15

S.

Romano,

Corso

di

diritto

costituzionale

gen?rale (Milan,

2nd

ed.,

1946),

pp.

192-193.



13/17

698

ALEXANDER

P.

D'ENTR?VES

that

a

new

legitimacy

has

set

in,

in

so

far

as

"the

actual

behaviour

of

individuals is

[now]

interpreted

as

legal

or

illegal

.

.

.

according

to

this

new

order."

Thus,

according

to

Kelsen,

"the

principle

of

legitimacy

is

restricted

by

the

principle

of effectiveness."

16

Now it

would be

easy

indeed?and

it

has

been

done

many

times?to level

at

such

interpretations

of

legality

and

legitimacy

the

accusation

of

being

nothing

else

than

an

elaborate

form of

jus

tification of the

fait

accompli,

and that

they

end

by

making

force,

not

justice,

the last

resort

of

legal

as

well

as

of

political theory.

But

I

know

my

positivists

well,

and

I

think

I

know too

the

answer

which

they

would offer

to

this

kind

of criticism. To

them,

the

problem

of

justice

is

a

problem

of

value,

a

moral rather than

a

legal

problem.

They

do

not

deny

its relevance:

they simply

rele

gate

it

outside

the

realm and the

competence

of

the

lawyer.

Many

of

my

positivist

friends

are

men

of

high

moral convictions.

There

can

be

no

doubt of

their

being?as

the

phrase

now

goes?ethically

as

well

as

politically

"committed."

Yet

they obstinately cling

to

the views

which

I

have

described,

and

deem

it

a

token

of intel

lectual

honesty

to

profess

them.

They

will

repeat

with

Austin

that

"the

existence of

law

is

one

thing;

its

merit

or

demerit

another."

The

question

of

the

validity

of

law

is

to

them

a

different

question

from that

of its

moral

obligatoriness.

Hart

puts

their

case

very

well

when

he asks:

in what

way

is

it

better,

when

faced

with

an

iniquitous

law

or

with

an

iniquitous

State,

to

say,

this

is

not

law,

this

is

not

a

State,

rather

than,

this

is

law,

this is

a

State,

but

too

iniquitous

to be

obeyed

or

respected?

"The

certification

of

something as legally valid," Hart remarks, "is not conclusive of

the

question

of

obedience."

1T

Surely

this

seems

to

indicate

that

there

are

standards

by

which the

legal

order

can

be

appraised

other

than that

of

mere

factual existence.

Could it

not

be

the

case

that

this

is

precisely

what

is

meant

when

one

speaks

of

legitimacy

?

Rather than

attacking

the

positivists

on

this

ground,

I

believe

that

the

question

which

must

finally

be

asked

is:

does

their

view

of

legality

correspond

to

the

notion of

the

rule

of

law,

of

govern

16 H. Kelsen, General

Theory of

Law and State (tr. Anders

Wedberg)

(Cambridge,

Mass.,

1945-1948), pp.

115-122.

17

Hart, op. cit.,

p.

206.



14/17

LEGALITY

ND

LEGITIMACY

699

ment

under

law,

such

at

any

rate

as

it

is

usually

understood

in the

Anglo-American

tradition,

and

is

gradually

beginning

to

be

under

stood

in most

civilized

countries?

This is

a

big

question,

and

I

would like

to

end

with

some

personal impressions

rather

than

with

a

clear

and definite

conclusion. In

his

Digest

of

the

discussions

on

the rule of law which

were

held

in

Chicago

in

1957,

Mr.

J.

A.

Jolo

wicz

concedes that

"as

a

logical

postulate,

the

rule

of

law

has

no

necessary connection with any theory of fundamental values and

can

exist

as

well in

an

autocracy

as

in the

most

liberal

of demo

cracies."

But

he

immediately

goes

on

to

say

that

"so

formalistic

a

view of the

rule

of

law

did

not

commend

itself

to

the

participants

in

the

Colloquium.

On

the

contrary,

it seemed

to

be

generally

agreed

that

'the

Rule

of

Law

as

understood

in

the

West' involved

more

than the

mere

compliance

of

the

sovereign

power

in

a

State

with

the

rules of the

positive

law

of

that

State. There

was,

in

fact,

a

large

measure

of

agreement

that

the rule

of

law

has

some

positive

content

capable

of

being

expressed

in

terms of

fundamental

values."

18

Less

than two

years

later,

the International Commission

of

Jurists,

in the

Congress

it

held in New

Delhi,

agreed

to

define

the

rule

of law

as

"the realization

of

the

appropriate

conditions

for

the

development

of

human

dignity."

Clearly,

the

emphasis

is

here

on

the

content of

the

law,

on

the

purpose

of

the

legal

system.

The

request

for

legality

is

no

longer

one

for the formal

correctness of

the

particular

rules

or

of

the

single

decisions

alone.

It

is

a

request

for

the

conformity

of

these rules

and decisions

to

the

values

that

are

posited

as

necessary

for

the

existence

of

a

free

society.1'

We

are

provided with

a

touchstone which enables

us

to evaluate the

"legal

quality"

of

law,

the

substantive

aspect

of

legality.

We

are,

in

fact,

identifying

legality

with

legitimacy

once

again, though

in

a

manner

that is

exactly

opposite

to

that

of the

positivist.

The

positivists,

as we

have

seen,

had

ended

up

by

either

reducing

legit

imacy

to

a mere

question

of

fact,

or

transferring

the

appraisal

of

18

J.

A.

Jolowicz,

Digest

of the

Discussion,

Chicago

Colloquium

on

"The

Rule of

Law

as

understood

in

the

West"

(Sept.

1957),

in Annales

de la

Facult? de

Droit

d'Istanbul,

t.

IX,

1959.

19 N. S. Marsh, "The Rule of Law as a

Supra-National

Concept,"

in

Oxford

Essays

in

Jurisprudence,

ed.

by.

A.

G.

Guest

(Oxford,

1961),

pp.

240

245.



15/17

700

ALEXANDER P.

D'ENTR?VES

the

obligatoriness

of

law

to

a

different

plane altogether.

I

am

not

sure

that

we are

not

faced

now

with

a

reduction

of

legitimacy

to

a

question

of

natural

law

or

natural

rights,

or

at

any

rate

to

a

ques

tion

of

justice.

I

would

like

to conclude this

paper

with

a

few

remarks

about

the

conditions

which

alone

seem

to

me

to

make

that

reduction

possible.

The first

and essential condition

seems

to

me

to

be

that

there

should be a general agreement in a given society about basic values.

I

have

already

pointed

out

the

reasons

why,

in

societies

where

there

is

no

such

agreement,

the

safest

course

to

the

lawyer

may

seem

that of

entrenching

himself

behind

the

stronghold

of

legality.

As

Tocqueville

pointed

out,

there

may

be

good

reasons

for

him

to

prize

order

more

than

liberty;

there

certainly

are

when

the

menace

is

at

hand

of the

subversion

of

that

order

by

deliberate

enemies

of

freedom. The

pre-condition

for

the

rule

of law is

the

existence

of

a

free

society,

one

in

which

opposition

and

dissent

do

not

challenge

the

rules

of

the

game,

but

accept

them

as

beneficial

and

necessary.

This,

I

need

hardly

add,

seems

to

me

to

be

the

case

in

Britain and

in

the

U.S.A.;

I

am

not

sure

that it

is

so

in

several

other

contemporary

societies.

The

second

condition

is

that

we

abandon

or

at

least

modify

that

notion

of law

as

the

expression

of

a

sovereign

will which

underlies

the

positivist

's

case

and

which,

I

am

afraid,

is

deeply

ingrained

in the

mind

of

those

who

have been

reared

in

the Roman

tradition.

"Law,"

Justice Frankfurter

wrote,

"is

not

a

code

of

fettering

restraints,

a

litany

of

prohibitions

and restrictions.

It

is

an enveloping and permeating habituation of behavior, reflecting

the

counsels

of

reason on

the

part

of

those

entrusted

with

power

in

reconciling

the

pressure

of

conflicting

interests. Once

we

con

ceive

of the

'rule

of law'

as

embracing

the

whole

range

of

pre

suppositions

on

which

government

is

conducted and

not

as

a

technical

doctrine of

judicial

authority,

the relevant

question

is

not

has

it

been

achieved,

but

is

it

conscientiously

and

systematically

pursued.

.

.

.

What

matters

most

is

whether the

standards

of

reason

and

fair

dealing

are

bred

in

the

bones

of

the

people."

20

I

20

F.

Frankfurter,

Opening

address

for the

Harvard Conference

on

Government under Law

(Cambridge,

Mass.,

1956), p.

228.



16/17

LEGALITY

AND

LEGITIMACY

701

am

very

fond of

quoting

this

passage

as

the

best

summary

I

know

of

the American

attitude toward

law,

as

well

as

of

the

essential

contribution

of

American

realism

to

legal

theory.

Please

do

not

take this

to

imply

that

I

accept

all

the

tenets

of

realism,

nor

that

I

think

that

they

would

be

viable

in

Europe.

I

firmly

believe

that

on

several

points

our

two

traditions could

profit

from

a

mutual

encounter,

and for

one

thing

I

would

not

easily

renounce

the

Continental view that legal science must, and cannot but be, ethi

cally

neutral.

All

I want

to

say

is

that

once

you

conceive

of

law,

not in

the

Continental

fashion

as an

abstract

set of

rules,

but

as

a

continuous

and

purposeful

process,

the

whole

question

of

the

rule

of

law,

of

legality

and

legitimacy,

is

bound

to

appear

in

a

new

light,

and

certainly

in

a

different

one

from

that

in

which

it

appears

to

us

in

Europe.

Some isolated but authoritative

voices,

I

know,

have

recently

been

heard

also here in

the

U.S.A.,

stressing

the

necessity

of

"neutral

principles"

in

judicial

decision

as

well

as

in

legal

argumentation.21

Some

of

the caveats

of

legal positivism

may

well

serve

to correct

certain

extremes

of

the

realist

approach

and

to

introduce

some

rationalism in

realism.

But the

point

is?or

so

it

appears

to

me?that

rigid

neutrality

is

necessarily

ruled

out

by

an

approach

to

law such

as

yours,

since,

as

Dean

Rostow

has

pointed

out

in

replying

to

Professor

Wechsler,

the

"legitimacy"

of

a

Court's

decision

does

not,

and

cannot,

rest

with

you

only

on

"the

element

of

rules,

of

precedent,

of what

[Professor

Wechsler]

calls

'principle'

or

'reason'."

22

It

rests,

I

guess,

in

Justice

Frank

furter's

words,

on

"an

enveloping

and

permeating

habituation

of

behavior,"

"bred

in

the

bones"

both of

your

Courts

and of

your

people.

Legitimacy

will

therefore

never

consist

in

legality

alone;

it

lies,

rather,

in

the constans et

perpetua

voluntas

of

making

legal

ity

an

adequate

instrument

of

legitimacy.

I

have said

enough,

I

fear,

to

make

my

whole

argument

self

defeating.

If

my

interpretation

is

correct,

I

have

collected

sufficient

evidence

to

explain

why

my

whole

question

about

legality

and

21

H.

Wechsler,

"Toward Neutral

Principles

of

Constitutional

Law"

(The

0.

W.

Holmes Lecture

at

the Harvard Law

School,

1959),

in

Principles,

Politics and Fundamental Law (Cambridge, Mass., 1961).

22

E.

V.

Rostow,

"American

Legal

Realism",

in The

Sovereign

Pre

rogative

(New

Haven,

1962),

pp.

28

ff.



17/17

702

ALEXANDER

P.

D'ENTR?VES

legitimacy

is

very

likely

to

seem,

to

some,

meaningless

or

pointless.

Let

me

hope

that

I

may

have

at

least

exposed

some

reasons

for

understanding

why

it

is

not

so

with

us,

and

why

it

is

bound

to

remain,

so

long

at

any

rate

as

present

conditions

endure,

much

more

than

a

merely

academic

question.

University

of

Turin;

Yale

University,

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