It is imperative that any political regime first gains its legitimacy before enforcing its authority on people. At the outset, it is important to differentiate legitimacy from legality. Legality is a technical concept, which may or may not always satisfy criteria for legitimacy. Legitimacy, on the other hand, is ascertained through an ethical evaluation of an action, phenomenon or an institution. In public affairs, many laws get contested on claims of their illegitimacy. Inversely, many laws are enacted on the basis of legitimate necessities for their existence. The role of democracy, in this context, is to legitimate what is legal and vice versa. Whether it is a representative democracy or direct democracy, the role of democratic processes is to bring a moral bearing to the legislatures. More broadly, democracy is the force of virtue through which a state can exercise its authority. The rest of this essay will elaborate various facets to the interrelation between legitimacy and democracy.
It is almost self-evident that political regimes cannot have legitimacy without democracy. Since legitimacy is based on support,
“the question of the relationship between legitimacy and democracy depends on the relationship between support and democracy, a relationship which is contingent, not axiomatic…Legitimacy and democracy are related if members support an institution only to the extent that they view it as democratic: the relationship between legitimacy and democracy is therefore at the level of beliefs and of beliefs that the institution has to be democratic if it is to be supported.” (Blondel, Sinnott, & Svensson, 1998, p. 10)
In liberal democracies, especially, legitimacy of the regime is of paramount importance. What is true for nations is also applicable to supranational entities. The European Union is a case in point, where most nations in the bloc purport to embrace the liberal-democratic constitutional framework. Even the EU constitution is an abstraction of this common theme uniting several nations in the bloc. In the case of the larger entity the EU, as it continues to expand, “the complex has intensified and has become more and more closely linked to the issue of legitimacy”. (Rosanvallon, 2011, p. 7) It is understood at the time of ratification of the EU constitution that, for the EU to be a democratic conglomeration, gaining legitimacy is an imperative. Equally, the European Parliament is another key institution for maintaining democratic processes within the EU. The Council of Ministers and the national parliaments are expected to play a complementary role in this regard. With these expectations of the European Parliament,
“it also seemed logical to suggest that direct elections and an increase in the powers of the Parliament would automatically increase the legitimacy of the European Union and of the whole European project. The Tindemans Report articulated this expectation in 1975: ‘direct elections . . . will give this assembly a new political authority and reinforce the democratic legitimacy of the whole European institutional apparatus’”. (Blondel, Sinnott, & Svensson, 1998, p. 4)
While democracy is a critical precondition to a regime’s legitimacy, it is not the exclusive one. It is equally important that the processes that comprise a democratic system are all reliable and functional. For example, the conduct of free and fair elections is mandatory and an attestation as such by a neutral institutional observer is also requisite. For example, organizations such as International Humans Rights Watch as well as international media can play this crucial third-party observer role. Only those elected regimes that stand the scrutiny of a neutral entity’s inspection and certification can claim to be legitimate.
For political regimes to gain legitimacy, they also need to practice a deliberative mode of democracy. At the centre of deliberative democracy is the belief that broad consent should be acquired before decision making. This is achieved through public deliberation, where “citizens justify the self-imposed laws and policies which are collectively binding. Because the outcomes of the deliberative process arise out of the autonomous and epistemically unrestricted collective reasoning of the polity, its members are obligated to obey these outcomes.” (Valadez, 2000, p. 32) Brought to the fore are processes of autonomous self-governance that reflect a “higher degree of collective knowledge and mutual moral responsibility.” (Valadez, 2000, p. 32)
Political equality is another characteristic of a vibrant democracy. In the context of deliberative and participatory democracy, a “particularly demanding conception of political equality” is desirable. (Valadez, 2000, p. 71) While voting and public deliberation are rudimentary mechanisms toward acquiring legitimacy, the ambit of political equality is a far more complex set of procedures and functions. It is important for the democratically elected government, as well as constitutionally appointed institutions to ensure that they are not undermined. It is utterly necessary to ensure that public deliberation is not monopolized by elites and establishment intellectuals. (Valadez, 2000, p. 71)
Political scientists have identified three types of legitimacy for governments. They are related to the three types of social generality. These are 1. The legitimacy of impartiality; 2. The legitimacy of reflexivity; and 3. The legitimacy of proximity. (Rosanvallon, 2011, p. 7) Here, the notion of legitimacy is redefined as that which “partakes of a broader decentering of democracy”. (Blick & Weir, 2009) What follows is reduced value to electoral democracy. Instead, people actively serve as watchdogs, veto players and judges of the system. The pre-eminence of the ballot box is replaced by the reorganization of the democratic regime. The result is a new form of legitimacy of the state which is not easy to attain. Moreover,