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11 - Constitutional Legitimacy

from Part II - Modalities

Published online by Cambridge University Press:  27 March 2025

Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

What makes a constitution legitimate? Models grounded in consent, right procedure, or necessary and sufficient justice conditions capture powerful intuitions, but face equally powerful problems: These models generate paradoxes and infinite regress, and their static character ignores legitimacy’s dynamism. Moreover, debates around constitutional interpretation – originalism, living tree, or common good oriented - demonstrate the permanent space between a (constitutional) rule and its application. These debates leave mysterious how legitimacy, once in a constitution, ever gets out. But these issues resolve if we understand legitimacy as something functional, not substantive. Like a currency, I suggest, it can be drawn from diverse (normative and symbolic) sources, banked (in constitutions), and later withdrawn and spent (on political endeavours). This model honours normative intuitions, while escaping puzzles and paradoxes. Moreover, since a constitution’s legitimacy ‘holdings’ can fluctuate with political skill and circumstance, this model capture’s legitimacy’s dynamism. Such a functional model bridges the empirical and normative study of legitimacy, and it may deepen empirical understanding of normativity’s role in regime stability and constitutional change.

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Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Barnett, R. (2003). Constitutional Legitimacy. Columbia Law Review, 103 (1), 111148.CrossRefGoogle Scholar
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Brilmayer, L. (1989). Consent, Contract, and Territory. Minnesota Law Review, 74 (1), 135.Google Scholar
Dyzenhaus, D. (2010). Hard Cases in Wicked Legal Systems, Oxford: Oxford University Press.Google Scholar
Gilley, B. (2006). The Meaning and Measure of State Legitimacy: Results for 72 Countries. European Journal of Political Research, 45 (3), 499525.CrossRefGoogle Scholar
Hardin, R. (2003). Liberalism, Constitutionalism, and Democracy, Oxford: Oxford University Press.Google Scholar
Michelman, F. I. (2003b). Is the Constitution a Contract for Legitimacy? Review of Constitutional Studies, 8 (2), 101128.Google Scholar
Rawls, J. (1993). Political Liberalism, New York: Columbia University Press.Google Scholar
Scharpf, F. (1999). Governing in Europe: Effective or Democratic? Oxford: Oxford University Press.CrossRefGoogle Scholar
Vermeule, A. (2022). Common Good Constitutionalism, Boston: Polity.Google Scholar
Weber, M. (1978). Economy and Society: An Outline of Interpretive Sociology. Edited by Roth, G. and Wittich, C.. Berkeley: University of California Press.Google Scholar
Zurn, C. (2010). The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional Democracy. Legal Theory, 16 (3), 191227.CrossRefGoogle Scholar

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