Law's Legitimacy and 'Democracy-Plus'

Abstract

Is it the case that the law, in order to be fully legitimate, must not only be adopted in a procedurally correct way but must also comply with certain substantive values? In the first part of the article I prepare the ground for the discussion of legitimacy of democratic laws by considering the relationship between law's legitimacy, its justification and the obligation to obey the law. If legitimacy of law is seen as based on the law being justified (as in Ra's 'service conception'), our duty to obey it does not follow automatically: it must be based on some additional arguments. Raz's conception of legitimate authority does not presuppose, as many critics claim, any unduly deferential attitude towards authorities. Disconnection of the law's legitimacy from the absolute duty to obey it leads to the second part of the article which consists in a critical scrutiny of the claim that the democratically adopted law is legitimate only insofar as it expresses the right moral values. This claim is shown to be, under one interpretation ('motivational'), nearly meaningless or, under another interpretation ('constitutional'), too strong to survive the pressure from moral pluralism. While we cannot hope for a design of 'pure procedural democracy' (by analogy to Rawlsian 'pure procedural justice'), democratic procedures express the values which animate the adoption of a democratic system in the first place.

Keywords: Democratic theory, philosophy of law, legitimacy, obligation to obey, constitutional theory

JEL Classification: K30, K10, K33