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LEGITIMATION BY PROCEDURE AND BEYOND Stefan Machura, Bangor University.

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Presentation on theme: "LEGITIMATION BY PROCEDURE AND BEYOND Stefan Machura, Bangor University."— Presentation transcript:

1 LEGITIMATION BY PROCEDURE AND BEYOND Stefan Machura, Bangor University

2 Niklas Luhmann‘s „legitimation by procedure“ – the question Adding to Weber‘s theory  To explain Max Weber‘s legal-rational type of legitimacy  Weber: orders are obeyed, authorities empowered according to an accepted legal framework / legal order  Luhmann wants to know more about how this works  A hint: legitimate power: „un pouvoir qui accepte ou même qui institue son propre procès de légitimation“ (Bourricaud).

3 Insecurity and social meaning Sociological heritage  Luhmann‘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.

4 Expectations and learning Sociological heritage II  Luhmann 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.

5 The core idea The funnel of procedure  Procedures 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.

6 Niklas Luhmann‘s funnel of procedure Party 1Party 2 ????????????? ??????????? ????????? ???????? ??????? ????? ??? ? Decision Stating their case and reacting to the other party thereby eliminating possibilities until the case can be decided.

7 The core idea II The funnel of procedure II  Now, 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.

8 The background assumption A social consensus  Legitimation 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.

9 From „legitimation by procedure“... Parallel developments  Luhmann‘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 fairness  Unfair 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.

11 Detailing the background assumption Leventhal‘s criteria of fair procedures  Consistency  Bias-suppression  Accuracy  Representativity  Correctability  Ethicality ‘

12 Challenging the individualistic approach Adding group identification  Luhmann 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.

13 Limitations 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.

14 Limitations to procedural legitimation II Group identification and organised interests  Individuals 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.

15 Literature I  Legitimation durch Verfahren, 6th ed., Frankfurt at the Main, Suhrkamp 2006  A Sociological Theory of Law, London: Routledge and Kegan Paul 1985  Machura, 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 Books by LuhmannSecondary literature

16 Literature II  Leventhal, 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, pp  Machura, Stefan, 1988, Introduction: Procedural Justice. Law and Policy. Law and Policy, 20, 1-14  Machura, Stefan, 2001, Fairneß und Legitimität, Baden-Baden: Nomos  Tyler, Tom R., 1990, Why People Obey the Law, New Haven: Yale University Press  Weber, Max, 1980, Wirtschaft und Gesellschaft, Tübingen: Mohr


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