Presentation on theme: "Legitimation by Procedure and Beyond"— Presentation transcript:
1Legitimation by Procedure and Beyond Stefan Machura, Bangor University
2Niklas Luhmann‘s „legitimation by procedure“ – the question Adding to Weber‘s theoryTo explain Max Weber‘s legal-rational type of legitimacyWeber: orders are obeyed, authorities empowered according to an accepted legal framework / legal orderLuhmann wants to know more about how this worksA hint: legitimate power: „un pouvoir qui accepte ou même qui institue son propre procès de légitimation“ (Bourricaud).
3Insecurity and social meaning Sociological heritageLuhmann‘s starting point was a general insecurity and how people address this by making selections.Luhmann emphasizes that situations carry certain meanings for the individuals involved.
4Expectations and learning Sociological heritage IILuhmann utilises role theory and the concept of social expectations.Law is to safeguard expections. You are expected to expect what others expect.Learning by disappointment and a tooth-gnashing acceptance.
5The core ideaThe funnel of procedureProcedures lead from an initial situation with lots of insecurity/possible options to a decision which leaves one option.Individuals are forced to take up roles in the procedure,To state their cases consistently and to react to the other party‘s arguments.Thereby they delete possibiblities and end up in a situation of limited options.
6Niklas Luhmann‘s funnel of procedure Party 1 Party 2?????????????????????????????????????????????????????????DecisionStating their case and reacting to the other party thereby eliminating possibilities until the case can be decided.Niklas Luhmann‘s funnel of procedure
7The core idea II Now, the judge, the voter, the parliament can decide. The funnel of procedure IINow, the judge, the voter, the parliament can decide.Having „voluntarily“ taken part, the parties are obliged to accept the result. Luhmann: differences for criminal trials.In a court procedure, losing parties learn that they have isolated themselves socially.
8The background assumption A social consensusLegitimation by procedure works because society expects the losing party to accept the results of procedures.Luhmann sketches out that procedures need to be unflawed, judges need to be neutral.
9From „legitimation by procedure“ ... Parallel developmentsLuhmann‘s theory was widely criticised by philosophers but accepted by an emerging socio-legal scholarsphip.John Rawls also revived interest in procedures.From the 1970ies onwards, scholars developed empirical research on the antecedents and consequences of fairness.‘‘
10... to „legitimation by fair procedure“ The significance of fairnessUnfair procedures can have a detrimental effect on the acceptance of decisions and institutions.„Fair process effect“: negative outcomes tend to be accepted.Individuals do not only want to be treated fairly themselves.They also watch how others are treated.And there often even is an understanding that outsiders/rule-breakers be treated fairly.
11Detailing the background assumption Leventhal‘s criteria of fair proceduresConsistencyBias-suppressionAccuracyRepresentativityCorrectabilityEthicality‘
12Challenging the individualistic approach Adding group identificationLuhmann mainly saw the individual as rationally pursuing self-interests.Later empirical research emphasized the importance of group identitification.Lind and Tyler‘s „group value theory“ states that fair procedures are symbols for a social group.Encountering unfair treatment results in disappointment, disengagement and rule- breaking.The fairness of the representatives of the powers is most important empirically.
13Limitations to procedural legitimation I Isolation after or before?Luhmann states that social isolation of the losing party is a result of a court procedure.However, social isolation also is a precondition for the courts working well as they find it difficult to deal with mass defendants.
14Limitations to procedural legitimation II Group identification and organised interestsIndividuals who understand themselves as opponents of the majority will only look at favourable decisions.Organized interest groups will seek opportunities to re-open cases.Protest groups may resort to violent action when disappointed in procedures.Procedures can be used by radical groups to produce martyrs and to undercut system legitimacy.In the end, legitimation by procedure works within a legitimate legal-political order.
15Literature IBooks by LuhmannSecondary literatureLegitimation durch Verfahren, 6th ed., Frankfurt at the Main, Suhrkamp 2006A Sociological Theory of Law, London: Routledge and Kegan Paul 1985Machura, Stefan, 1997, The Individual in the Shadow of Powerful Institutions. Niklas Luhmann’s ”Legitimation by Procedure” as Seen by Critics. In Röhl, Klaus F., and Machura, Stefan (eds.), Procedural Justice. Aldershot: Ashgate, pp
16Literature IILeventhal, Gerhard S., 1980, What Should Be Done With Equity Theory? In K. J. Gergen, M. S. Greenberg und R. H. Willis (eds.), Social Exchange: Advances in Theory and Research, vol. 9, New York: Plenum, ppMachura, Stefan, 1988, Introduction: Procedural Justice. Law and Policy. Law and Policy, 20, 1-14Machura, Stefan, 2001, Fairneß und Legitimität, Baden-Baden: NomosTyler, Tom R., 1990, Why People Obey the Law, New Haven: Yale University PressWeber, Max, 1980, Wirtschaft und Gesellschaft, Tübingen: Mohr