Legitimation by Procedure and Beyond

1
Legitimation by Procedure and Beyond

• Stefan Machura, Bangor University

2
Niklas Luhmanns legitimation by procedure
the question

• Adding to Webers theory

• To explain Max Webers legal-rational type of
  legitimacy
• Weber orders are obeyed, authorities empowered
  according to an accepted legal framework / legal
  order
• Luhmann wants to know more about how this works
• A hint legitimate power un pouvoir qui accepte
  ou même qui institue son propre procès de
  légitimation (Bourricaud).

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Insecurity and social meaning

• Sociological heritage

• Luhmanns starting point was a general insecurity
  and how people address this by making selections.
• Luhmann emphasizes that situations carry certain
  meanings for the individuals involved.

4
Expectations and learning

• Sociological heritage II

• Luhmann utilises role theory and the concept of
  social expectations.
• Law is to safeguard expections. You are expected
  to expect what others expect.
• Learning by disappointment and a tooth-gnashing
  acceptance.

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The core idea

• The funnel of procedure

• Procedures lead from an initial situation with
  lots of insecurity/possible options to a decision
  which leaves one option.
• Individuals are forced to take up roles in the
  procedure,
• To state their cases consistently and to react to
  the other partys arguments.
• Thereby they delete possibiblities and end up in
  a situation of limited options.

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Niklas Luhmanns funnel of procedure

• Party 1 Party 2
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• Decision
• Stating their case and reacting to the other
  partythereby eliminating possibilities until the
  case can be decided.

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The core idea II

• The funnel of procedure II

• Now, the judge, the voter, the parliament can
  decide.
• Having voluntarily taken part, the parties are
  obliged to accept the result.Luhmann
  differences for criminal trials.
• In a court procedure, losing parties learn that
  they have isolated themselves socially.

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The background assumption

• A social consensus

• Legitimation by procedure works because society
  expects the losing party to accept the results of
  procedures.
• Luhmann sketches out that procedures need to be
  unflawed, judges need to be neutral.

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From legitimation by procedure ...

• Parallel developments

• Luhmanns theory was widely criticised by
  philosophers but accepted by an emerging
  socio-legal scholarsphip.
• John Rawls also revived interest in procedures.
• From the 1970ies onwards, scholars developed
  empirical research on the antecedents and
  consequences of fairness.

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... to legitimation by fair procedure

• The significance of fairness

• Unfair procedures can have a detrimental effect
  on the acceptance of decisions and institutions.
• Fair process effect negative outcomes tend to
  be accepted.
• Individuals do not only want to be treated fairly
  themselves.
• They also watch how others are treated.
• And there often even is an understanding that
  outsiders/rule-breakers be treated fairly.

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Detailing the background assumption

• Leventhals criteria of fair procedures

• Consistency
• Bias-suppression
• Accuracy
• Representativity
• Correctability
• Ethicality

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Challenging the individualistic approach

• Adding group identification

• Luhmann mainly saw the individual as rationally
  pursuing self-interests.
• Later empirical research emphasized the
  importance of group identitification.
• Lind and Tylers group value theory states that
  fair procedures are symbols for a social group.
• Encountering unfair treatment results in
  disappointment, disengagement and rule-breaking.
• The fairness of the representatives of the powers
  is most important empirically.

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Limitations to procedural legitimation I

• Isolation after or before?

• Luhmann states that social isolation of the
  losing party is a result of a court procedure.
• However, social isolation also is a precondition
  for the courts working well as they find it
  difficult to deal with mass defendants.

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Limitations to procedural legitimation II

• Group identification and organised interests

• Individuals who understand themselves as
  opponents of the majority will only look at
  favourable decisions.
• Organized interest groups will seek opportunities
  to re-open cases.
• Protest groups may resort to violent action when
  disappointed in procedures.
• Procedures can be used by radical groups to
  produce martyrs and to undercut system
  legitimacy.
• In the end, legitimation by procedure works
  within a legitimate legal-political order.

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Literature I

• Books by Luhmann

• Secondary literature

• Legitimation durch Verfahren, 6th ed., Frankfurt
  at the Main, Suhrkamp 2006
• A Sociological Theory of Law, London Routledge
  and Kegan Paul 1985

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

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Literature II

• Leventhal, Gerhard S., 1980, What Should Be Done
  With Equity Theory? In K. J. Gergen, M. S.
  Greenberg und R. H. Willis (eds.), Social
  Exchange Advances in Theory and Research, vol.
  9, New York Plenum, pp. 27-55
• Machura, Stefan, 1988, Introduction Procedural
  Justice. Law and Policy. Law and Policy, 20, 1-14
• Machura, Stefan, 2001, Fairneß und Legitimität,
  Baden-Baden Nomos

• Tyler, Tom R., 1990, Why People Obey the Law, New
  Haven Yale University Press
• Weber, Max, 1980, Wirtschaft und Gesellschaft,
  Tübingen Mohr