The Legal Concept of Legitimacy

This chapter reviews the legal principle of legitimacy, which has not received significant attention in the literature. The legitimacy of the law and the legal system rests more prominently on its moral aspects, however. The problem with legal positivism is precisely that it substitutes a political for a legal or moral standard of legitimacy. The court in the Secession Reference essentially reserved its right to rule on the legal legitimacy of the actions of the political actors in any controversy over secession. The legal process stands in contrast to the political process. Although the concerns that inform decision-making in the political arena are substantive, the democratic process is essentially a procedural process. In &s;Moral conflict and political legitimacy&s; for example, Thomas Nagel argues that the conduct of political actors needs to be justified on moral grounds. The question of moral legitimacy raises issues with respect to the nature and extent of the jurisdiction.