By Dr Hugh Breakey
Senior Research Fellow
Institute for Ethics, Governance and Law, Griffith Law School
‘Multidimensional legitimacy’ is the idea that there are an array of distinct dimensions on which an institution (or instrument like a law or code) might gain or lose legitimacy. In my recent writings on the subject, I’ve focused on normative legitimacy. On this understanding, legitimacy refers to objective legitimacy–that is, the presence of specific qualities that provide subjects with good moral reasons to respect and support the institution. I’ve explored this in recent publications in The Oxford Journal of Legal Studies ((2018a), considering copyright law), Law and Philosophy ((2018b), considering human rights), and in The Journal of Business Ethics ((2019), considering institutional codes of ethics). But the idea of multidimensional legitimacy also has a descriptive inflection, where it refers to subjective legitimacy–that is, the presence of specific qualities that tend to encourage actual people to respect and support the institution.
Either way, the idea isn’t particularly new or particularly controversial. After all, many moral theories intrinsically capture multiple dimensions of legitimacy. For example, Locke’s influential social contract theory developed in his 1690 Second Treatise of Government initially focuses on natural rights and correlative duties (‘substantive’ legitimacy). Yet because the unilateral protection of these rights creates inevitable risks of coercive violence, Locke appealed to contractual devices (employing ‘rule of law’, ‘fairness’ and ‘consent’ legitimacy), and went on to recommend democratic and deliberative legislative bodies (implicating ‘process’ and ‘decision-making’ legitimacy).
Multidimensional legitimacy is also well-known from a sociological perspective. A famous example is Max Weber’s tripartite position on state legitimacy, considering rational, traditional and charismatic legitimacy.
Yet even if the idea of multidimensional legitimacy is not new, many intriguing questions remain about what dimensions should be included in any multidimensional legitimacy framework, which elements are reducible to one of the others, and how trade-offs and compromises can be appropriately managed.
By way of quick illustration, my current (though still evolving) view includes ten distinct dimensions of legitimacy:
It works: Functional legitimacy.
It’s right: Substantive legitimacy.
It’s reasonable: Fairness legitimacy.
It’s predictable and followable: Rule of law legitimacy.
It’s ours: Communitarian legitimacy.
It respects us: Autonomy legitimacy.
I agreed: Consent legitimacy.
I trust: Transmission legitimacy.
We debated: Process legitimacy.
We decided: Decision-making legitimacy.
In my work, I’ve generally focused on the positives created by multidimensional legitimacy. For the ability of human beings to develop several distinct lines of legitimacy for their institutions or laws has real value. Perhaps most importantly, it allows us to create scope for agreement when initially agreement seems hard to come by. Even if we disagree on the substance of the collective action we should perform, perhaps we can come to agree on the process by which the decision will be made, on key features that any solution will have to include, or on certain outcomes that we should ensure. Through such mechanisms, we can develop widespread support that hitherto seemed impossible. This support can be important intrinsically, when it creates the conditions for consent to collective actions or rules, when it deescalates conflicts, or when it allows participants to show mutual moral respect to others, even as they disagree. And it is important instrumentally, as it increases the efficacy of social institutions and systems of rules through improved compliance and buy-in. In so doing, the effective pursuit of multidimensional legitimacy can create wide assent even in the face of a strong diversity of substantive views. If we think that diversity is generally a good thing, morally and epistemically, then multidimensional legitimacy helps us manage and maintain that diversity.
Yet I want to briefly raise here the worry that there is a darker side to multidimensional legitimacy. For there are ways that having multiple distinct routes to legitimacy can create less desirable outcomes.
One concern is that we might become too perfectionist about legitimacy, aiming for full legitimacy on each dimension. This pursuit might be distracting, costly and time-consuming. But it might also foment unnecessary controversy. Cass Sunstein (1996) rightly lauds what he calls ‘incompletely theorised agreements’–where shared agreement on a way forward should not be threatened by the desire to ensure unanimity on the reasons why that way forward is ultimately justified. Indeed, the tendency to appeal to various forms of legitimacy may even escalate conflicts, by allowing new grievances to be brought into a dispute, frustrating resolution of the original issue (Glasl, 1999).
The pursuit of multidimensional perfection might also raise the standards for legitimacy beyond what is actually feasible by fallible humans and their institutions. Ten sources of legitimacy means ten potential lines of critique–and it will be a rare alignment of the planets when an institution is immune from critique on any dimension. If our moral standards are too demanding, then the best may become the enemy of the good.
But perhaps the main worry I have with multidimensional legitimacy is that it can work to entrench already polarised political views. Multidimensional legitimacy empowers the capacity of cooperative agents who want to find a way forward together despite their deep disagreements. But it also empowers the capacity for those who want to resist a collective way forward by allowing them to find new reasons to disagree. For when there is disagreement on the substance of what law or policy we should have, commentators and leaders can be tempted to reach for alternative sources of legitimacy not as a way of securing more widespread assent, but instead as a means of selecting lines of argument that further cement their position.
Consider, for example, controversies about the rightful strength and scope of international law and governance (see Bodansky (1999) for an earlier like-minded treatment). Those sceptical about international law can appeal to communitarian legitimacy (‘It’s not our way of doing things.’), transmission legitimacy (‘It comes from a source captured by international elites.’), process legitimacy (‘Most citizens don’t even know how international law is formed.’) and decision-making legitimacy (‘We didn’t vote for it.’)
Meanwhile, those sympathetic to international law will stress functional legitimacy (‘This is critically necessary to deal with urgent and potentially catastrophic global problems.’), rule of law legitimacy (‘We need to protect against might-makes-right arbitrary power in international affairs.’), substantive legitimacy (‘It’s the morally right thing to do.) and fairness legitimacy (‘It appropriately shares the burdens and goods of collective endeavours and resources.’)
These different lines of argument may all be valid on their own terms, and worthy of serious consideration. After all, that is the very point of multidimensional legitimacy–the awareness that there are different and irreducible qualities that provide genuine moral reasons for or against an institution, policy or law. But with the current state of political deliberation, commentators and leaders can be tempted to exclusively focus on the sources of legitimacy that support their view. If a commentator is, for example, against the Paris Climate Agreement, then the lines of argument noted above give them an enormous amount to validly critique–so much, indeed, that they might never get around to explicitly confronting whether they agree that harmful climate change is likely and–if so–what should be done about it. By adopting and focusing explicitly and repeatedly on certain legitimacy dimensions, to the exclusion of all others, each side can create echo-chambers of partisan agreement.
Ultimately, the ability to appeal to multiple routes to legitimacy empowers groups that possess internal disagreements, but have a commitment to cooperation and equal respect, to find ways forward that everyone can potentially respect and support. Unfortunately however, there are also darker sides to multidimensional legitimacy, and we will sometimes need to be aware of the worrying ways it may contribute to conflict escalation or group polarisation effects.
Bodansky, Daniel. 1999. “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?” American Journal of International Law 93, no. 3: 596-624.
Breakey, Hugh. 2018a. “Deliberate, Principled, Self-Interested Law Breaking: The Ethics of Digital ‘Piracy’.” Oxford Journal of Legal Studies 3, no. 4: 676-705.
Breakey, Hugh. 2018b. “It’s Right, It Fits, We Debated, We Decided, I Agree, It’s Ours, and It Works: The Gathering Confluence of Human Rights Legitimacy.” Law and Philosophy 37, no. 1: 1-28.
Breakey, Hugh. 2019. “Harnessing Multi-Dimensional Legitimacy for Codes of Ethics: A Staged Approach.” Journal of Business Ethics Forthcoming.
Glasl, Friedrich. 1999. Confronting Conflict. Gloucestershire: Hawthorn.
Sunstein, Cass R. 1996. Legal Reasoning and Political Conflict. New York: Oxford University Press.