Defining Political Legitimacy

Democracy requires certain criteria to be met in order for institutions to be valid and for the political system to flourish. Political legitimacy is one of those criteria. It traces its roots to some of the earliest theories of democracy, including those of Aristotle, who “endorses rule by consent as essential to the legitimate forms of constitution"¹ Under many different forms of liberal, constitutional democracy—most obviously social contract theories— citizens share a stated or implicit covenant with the state. Through these contracts, they agree to cooperate with the state and its laws and practices in exchange for certain social benefits or protections. Citizens give their consent to the laws and practices of the state and showcase such consent through taxes, military service, jury duty, and other forms of civil service. John Rawls, Ronald Dworkin, and other key political theorists recognize that citizens often do not provide actual, overt consent because it is not practical for everyone to do so. Citizens, most simply, do not have the time to assess every institution, law, or practice and deem it legitimate. Instead, we rely on hypothetical consent, which suggests that reasonable and informed citizens would freely give their consent if time and circumstances permitted. Even while allowing for this practical limitation, though, states should still try to achieve the express consent (or at least have that consent reflected in the actions) of as many citizens as possible.

In other words, states should aim for the explicit approval of their laws, institutions, and practices from the citizenry so that those laws, institutions, and practices reflect the will of the citizens and are upheld by them in daily living, rendering them meaningful. The political legitimacy of a state or its institutions arises from citizens concluding that these are worthy of recognition and serve a justified role. The concept was perhaps most thoroughly explored by Rawls, who summarized the role of the constitution that guides state practices this way: “Our exercise of political power is fully proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational"² Drawing on Rawls, a democratic society has a political conception of justice guiding its constitution that results from reasonable beliefs and is authentically upheld among its citizenry. Political legitimacy means that the citizenry freely supports that notion of justice and its manifestations in state institutions or state control and considers it worthy of recognition. Or, as Jurgen Habermas says, “Legitimacy means that there are good arguments for a political order’s claim to be recognized as right and just"³

Ideally, citizens, free from coercion, choose to affirm the principles and practices of justice that are used to regulate their actions and grant them freedoms.⁴ In return, the state provides citizens with protections and services that enable them to pursue their own self-interests. This balancing of rights and responsibilities with consent and political legitimacy keeps our society stable by preventing repressive governments and disgruntled citizens. Or, to use the language of Kenneth Strike,

Stable governments and their institutions require citizens who respect and can function within the established political order. If government is to be stable without being repressive, it must be legitimate without manipulating citizens to accept an unjust regime, citizens must see it as legitimate because it meets appropriate normative criteria of legitimacy.⁵

Political legitimacy buttresses the stability of a society, for institutions that are legitimate reflect the will of the people and can operate smoothly to meet citizen needs without substantial dissent or overthrow. Politically legitimate institutions also tend to uphold some democratic values and practices across time, providing stability based on continuity, even as they undergo transformations to meet changes in the environment or citizenry.

The state may expect citizens who benefit from its services to contribute to preserving the institutions, like schools, that provide them. Theorists like William Galston and his predecessor John Locke would likely say that the state may expect citizens to support that which provides goods to them as a form of social cooperation. Notice that citizens giving consent and legitimacy to institutions as part of a relationship that keeps democracy strong offers another justification for my call for citizen responsibilities. For citizens have a responsibility to ensure the political legitimacy of laws, practices, and institutions by giving their consent and their support so that democracy can function smoothly to provide all citizens the rights and benefits of democratic life.

Nation-states are often held together, in part, through publics that share an identity. This identity may arise from shared history, experiences, struggles, and values that provide a sense of what binds us together and help us define who we are as individuals and, especially, as a group. And while a single identity is not necessarily upheld by all people within a large and complex liberal democracy like that of the United States, multiple publics do become integrated together through shared experiences and values. Typically, the state does not overtly determine what those norms are beyond basic instantiations of them in constitution and law. But it does aim to protect its own well-being as well as that of its members, which often entails upholding those norms and using them as benchmarks of accountability. In the case of a liberal democracy like our own, the state also perpetuates values of democratic living that have sustained the system and provided goods to its citizens. In the United States these include political norms like equal representation and equal respect for persons.

To achieve legitimacy, a state or its institutions must fulfill reasonable criteria that support our identity and well-being while enabling democracy to flourish. Strike explains, “There may be many such criteria for the legitimization of public institutions, but there are two broad groups. First, institutions should aim to accomplish their legitimate purposes, which, in turn, should aim at the good of those they serve. Second, in our society, institutions must adhere to the fundamental political norms of liberal democ- racy"⁶ That is, when we try to determine whether something is legitimate, we should consider whether it fulfills purposes that meet our goals and needs and whether it upholds the values of liberal democracy. These are the criteria that we should use to assess an array of democratic practices and institutions, including schools.

Political legitimacy, when viewed through the lens of participatory democracy that I have championed throughout this book, is more than just giving reasonable and free consent, as held in more basic theories of social contract democracy. As Habermas explains,

The state does not, it is true, itself establish the collective identity of the society; nor can it itself carry out social integration through values and norms, which are not at its disposition. But inasmuch as the state assumes the guarantee to prevent social disintegration by way of binding decisions, the exercise of state power is tied to the claim of maintaining society in its normatively determined identity. The legitimacy of state power is then measured against this; and it must be recognized as legitimate if it is to last.⁷

The legitimacy of the state and its institutions, then, is reflected in its ability to preserve shared identity while adapting to changes in that identity and related experiences and values of citizens. Or again in Habermas’s words: “The claim to legitimacy is related to the social-integrative preservation of a normatively determined social identity. Legitimations serve to make good this claim, that is, to show how and why existing (or recommended) institutions are fit to employ political power in such a way that the values constitutive for the identity of the society will be realized"⁸ When understood from the perspective of participatory democracy, legitimacy takes on additional importance within a thriving democracy. The preservation and appropriate change of identity becomes another criterion for establishing the legitimacy of an institution. Over time, citizens craft an identity together, and while it remains open to change, they seek to have it affirmed in the laws, institutions, and practices of the state.

Given some of the changes that we’ve seen in our schools recently, including shifts toward greater parental choice, privatization, and fulfilling the selfinterests of parents and students outlined in earlier chapters, it appears that our country may be experiencing significant shifts in our values and identity right now. It appears that the values of neoliberalism, arising from competition among individuals and demarcated by economic success and consumer prowess, may be growing in popularity among our population. This development is significant and warrants careful consideration, though such consideration is largely beyond the scope of this book. Nonetheless, here I want to assert that growing or mass appeal should not be merely accepted as sufficient justification for reorienting our public institutions around such values; it does not render them necessarily democratically desirable. Yes, as I said earlier, public schools should reflect the will of publics, and it seems that our will may be changing. And, yes, political legitimacy does seek to determine whether our institutions reflect the identity and values of the people. But, we must balance those alongside criteria based on the norms of liberal democracy. Those norms may trump budding aggregate preferences in our country if they better protect our individual and group well-being overall.

As I made an initial case in chapter four, many of the values of neoliberalism, including its privileging of freedom over equality and its replacing of political understandings of citizens with economic ones, are not currently reconcilable with democratic norms. Through reflection and deliberation we must keep the public will and values in check with central principles of democracy, such as equitable shared living, equal opportunity, and tolerance. This is not to say that even those principles themselves should be closed to revision, for indeed they too should change when conditions warrant. But we also have a long and growing history of examples at home and abroad that indicate the staying power of those principles and their importance in protecting the well-being of all citizens, including those who have not been well served by neoliberalism. Admittedly, though, our schools have often fallen short of fully embodying those principles, as they have engaged in discrimination and neglect. But we do have evidence that public schools create and serve public values and goods, and we know that they can do so in better ways than they have historically.

Let us consider one example to showcase our need to balance growing neoliberal values with established liberal democratic norms of living. Our tendency under neoliberalism is to focus on the values and goods of individuals (especially their economic interests), settling for what we call “neighborhood benefits" where we each benefit from some state of affairs and therefore uphold it as desirable because it is an aggregation of private goods, as I discussed in chapter two. For example, my taxes are lessened when fewer people are convicted of crimes and go to prison. Alongside my peers, who ultimately share similar self- interests in maximizing their financial resources, I experience a neighborhood benefit when schooling reduces crime and, therefore, my taxes. However, one problem with focusing on self-interests in this sort of aggregate way is that it renders the public invisible, if there is any public at all. The focus is not on benefitting together by having, in this example, a safer community or on reaching public values or understandings together around the causes of crime, the fairness of sentencings, or the aims of education, but rather it’s on acting and benefiting individually and, in many cases, apart from each other. Neighborhood and aggregate individual benefits are not the same as public values forged through reflection, imagination, or collaboration. We must call out these changes in our society to reveal the ways in which they conflict with and may even jeopardize democratic norms like equality before the law and shared public life. We should be careful not to quickly adopt new values with large numbers of supporters as revised guides for our public institutions or as criteria for assessing their legitimacy.

To briefly summarize, attaining the consent of the governed is essential to the legitimacy of political institutions and to the meaningfulness of their laws and practices. Moreover, such consent must be maintained across changes in institutions and should be assessed using criteria that determine whether, through those institutions, our needs and goals have been met, whether the values of liberal democracy are upheld, and whether our identity is appropriately revised and preserved.