Between Experience And Norm: The Paradigm Shift Of Legitimacy

The purpose of this article is to describe the paradigm shift of legitimacy, lookfor the causes which have made the paradigm of legitimacy shift; in addition, thisarticle attempts to put forward a contemporary rebuilding mode of legitimacy throughclarifying the evolution of the paradigm of legitimacy.In the introduction of this article, based on Habermas’s theory of the empiricallegitimacy and normative legitimacy, combined with the American scholar Fallon’sdefinition of legal legitimacy, sociologic legitimacy and philosophical legitimacy,according to their inner logic, we attributed to the paradigm of legitimacy as thenormative paradigm of legitimacy, the empirical paradigm of legitimacy, the paradigmof legitimacy through legality, as well as the procedural paradigm of legitimacy. Thenormative paradigm of legitimacy believes that the legitimacy of political power andlaw originates in nature or divine will; the empirical paradigm of legitimacy thinksthat the legitimacy of political power and law comes from the empirical consent of thepeople; the paradigm of legitimacy through legality insists on that the political powerand law own legitimacy when they line with the positive law; the procedural paradigmof legitimacy holds that the legitimacy of political power and law roots in theconsensus reached by procedural deliberation.In the part1of this article, we elaborate the normative paradigm of legitimacy.According to our research, from the epic era of ancient Greek to the Enlightenment, the domain paradigm of legitimacy was the normative paradigm of legitimacy whichembodied in the concept of a binary order, the binary order appeared as the divine lawand human law in the epic era, as the nature and customs in the period of philosophy,as the divine will and public opinion in ancient Rome, as the eternal law and humanlaw in the Middle Ages. The key of the binary order was that the divine order gave thesecular order legitimacy, thus, the construction of philosophy or mythology providedus with certain social functions.However, with the advent of the era of change, the Renaissance increasedpeople’s status dramatically; the Reform of Religion crumbled theocratic; theEnlightenment made natural vanished, while the nature and the divine will both hadbeen thrown off, the binary order was falling apart, so the legitimacy became rootlessduckweed. It was in the context of the great man，the evil Machiavelli thought fallen,with the loss of the eternal order, Machiavelli in fact abandoned the normativedimension of legitimacy, his only concern was only the effectiveness of rule, and whathe taught was blatant trickery. Machiavelli declared the end of an era. However,Machiavelli had destroyed the Western tradition of legitimacy, but he walked awayand left, with no reconstruction of legitimacy. In fact, this work is completed byHobbes, who rediscovered the human rights as the foundation of legitimacy for themodern politics. So, Machiavelli and Hobbes, one broken one stand, but only Hobbesshould be called the father of modern political philosophy.The legitimacy pioneered by Hobbes still belongs to the normative paradigm oflegitimacy, since that his legitimacy was founded on the natural human rights. WhyHobbes’s legitimacy still belongs to the scope of moral legitimacy is that the standardof his legitimacy did not depend on the actual consent or acceptation of the people,but on some independent moral standard. However, the epoch-making changes ofHobbes’s legitimacy is that, although he insisted on the approach of moral legitimacy,but he abandoned the divine road of ancient legitimacy, and established his legitimacyin the secular society, more specifically, he shifted the foundation of legitimacy fromthe natural or God of ancient society to human rights of modern society. Thus, Hobbesactually pioneered a new tradition under the normative paradigm of legitimacy. Along the way pioneered by Hobbes, Locke and Rousseau further reinforced the normativeparadigm of legitimacy based on human rights, the difference among Hobbes, Lockeand Rousseau was no more than that Hobbes paid more attention to human security,Locke was more concerned about property, and Rousseau was more concerned aboutfreedom.The part2of this article elaborated empirical paradigm of legitimacy. We believethat the empirical paradigm of legitimacy accounted for the mainstream in this periodbecause of dichotomy of facts and values under modernity. Dichotomy of facts andvalues led to value subjectivism, value pluralism, value relativism and value nihilism,ultimately the normative dimension of legitimacy was completely destroyed, in thiscontext, Max Weber putted forward the empirical paradigm of legitimacy timely. First,Weber took the political order as an empirical fact to observe and study, he found thatonly the order which has the legitimacy can be maintained longer with the highestdegree of stability. Secondly, according to Weber, the sources of legitimacy ofpolitical order in the history may come from the tradition, or may come from theleader’s personal charisma, and the legitimacy of modern society come from theformal rational law. Here it is important to know that Weber is just like a naturalscientist to investigate why some order is relatively stable adhering to his free-valuemethod, then make an objective description of the legitimacy which is the basis of thisstable political order, but he refuses to evaluate the legitimacy is good or badaccording to morality, which means no value-judgment in Weber’s approach oflegitimacy.The part3of this article elaborated the paradigm of legitimacy through legality.According to the paradigm of legitimacy through legality, a behavior or politicalpower is legitimate as long as it complies with the laws. In fact, the paradigm oflegitimacy through legality converted legitimacy into legality. When Max Weberrecognized the legitimacy of modern society come from the formal rational law soshould be called a legal-rational legitimacy, he has been pioneered the road oflegitimacy through legality. However, where the paradigm of legitimacy throughlegality showed a relative mature version is in legal positivism, especially in Kelsen’s Pure Theory of Law. Legal positivism requires legality independent to traditionallegitimacy, action or power is legitimate as long as comply with the law, i.e.,legitimacy equals to legality. According to such a theory of legitimacy, the lawbecomes the sole criterion to judge whether the actions and powers are legitimate ornot, but where the legitimacy of law itself comes from? Or why do we have to obeythe law? Therefore, legal positivism must indicate the source of the validity of the law.And it is in this place, Kelsen’s pure theory of law made a unique contribution to thelaw because it converted legitimacy into validity, then solved the validity of law withquite mirthful "basic norms", thus constructed the theory of legitimacy throughlegality completely. The paradigm of legitimacy through legality, in a sense, was acontinuation of Weber empirical paradigm of legitimacy, they both responded to theproblem dichotomy of fact and value, but the paradigm of legitimacy through legalitydistinguished with Weber’s empirical paradigm of legitimacy in academic purport.The part4of this article elaborated the procedural paradigm of legitimacy.H.L.A.Hart, descendant of legal positivism, as well as John Rawls and Habermas,descendant of normative paradigm of legitimacy, in order to rebuild legitimacy in avalue pluralistic society, made efforts along their respective traditions. It is amazingthat their efforts from different directions had presented coincidences, i.e. they haveadopted the same approach of procedure. By pointing out the characteristics offormalization, inclusiveness and neutrality of the procedures, we confirmed that theprocedure will be the only choice to rebuild the legitimacy. However, whether theprocedure of Hart, the procedure of John Rawls, or the procedure of Habermas, aredistinguished each other and there are fatal weakness among them. So this approachto be successful, further repairmen is indeed. For this purpose, this article put forwarda more comprehensive procedure to rebuild legitimacy by trying to absorb advantageof procedure of Hart, Rawls and Habermas. This procedure, based on the theory oftwo-track deliberative of democratic of Habermas, is a procedure comprisingtwo-track democratic discourse. The procedure of two-track democratic discourseroots in civil society, goals for consensus about norm, this consensus is an"overlapping consensus" in Rawls’s word. The legitimacy got through the procedure of two-track democratic discourse is legitimacy through legality. In this way, thelegitimacy got through the procedure of two-track democratic discourse inherited theparadigm of legitimacy through legality of legal positivism to put the law at the centerposition, and use Habermas’s theory of discourse to solve the problem of cycle valuewhich embedded in procedure, at the same time, use Rawls’s theory of overlappingconsensus to correct the goal of discourse. Thus, by integrating advantage of everyone,we have drawn their own theoretical thinking.The procedural paradigm of legitimacy melted the normative paradigm oflegitimacy, the empirical paradigm of legitimacy, and the paradigm of legitimacythrough legality in one. Through procedure which embedded in two-track democraticdiscourse, the procedural paradigm of legitimacy stressed both acceptability ofnormative consensus and the consent of the people in fact, at the same time, the goalof discourse, is a consensus about law, so the procedural paradigm of legitimacy isalso a the paradigm of legitimacy through legality. Thus, four paradigms of legitimacyelaborated in this article are not random presented to readers because of interest, buthas an intrinsic link among them, the first, second and third paradigm of legitimacyeventually have been absorbed into the fourth paradigm of legitimacy.