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Legitimacy (criminal law)

January 01, 1970

Not to be confused with Legitimacy (family law), legality, or Legitimacy (political).

In law, "legitimacy" is distinguished from "legality" (see also color of law). An action can be legal but not legitimate or vice versa it can be legitimate but not legal.

Shamash (seated), depicted as handing symbols of authority to Hammurabi (relief on the upper part of the stele of Hammurabi's code of laws).

Thomas Hilbink suggests that the power to compel obedience to the law, is derived from the power to sway public opinion, to the belief that the law and its agents are legitimate and deserving of this obedience.[1]

Where as Tyler says, 'Legitimacy is ...a psychological property of an authority, institution, or social arrangement, that leads those connected to it to believe that it is appropriate, proper, and just' (Tyler, 2006b: 375). Thus viewed, the legal legitimacy is the belief that the law and agents of the law are rightful holders of authority; that they have the right to dictate appropriate behaviour and are entitled to be obeyed; and that laws should be obeyed, simply because, that is the right thing to do (Tyler, 2006a; Tyler, 2006b; cf. Easton, 1965).[2]

Development of legal legitimacy edit

Peter Kropotkin suggested that acceptance of the rule of law developed in response to the rampant abuse of authority by the nobility; post advent of the middle class after the French Revolution, strict adherence to the law was conceived as the ultimate equalizer within society. “Whatever this law might be,” Kropotkin writes, “it promised to affect lord and peasant alike; it proclaimed the equality of rich and poor before the judge”.[1]

To establish that a government action can be legal whilst not being legitimate; e.g., the Gulf of Tonkin Resolution, which allowed the United States to wage war against Vietnam without a formal declaration of war. It is also possible for a government action to be legitimate without being legal; e.g., a pre-emptive war, a military junta. An example of such matters arises when legitimate institutions clash in a constitutional crisis.

Legitimacy is the right to rule and the recognition by the ruled of that right (Sternberger, 1968; Beetham, 1991; Coicaud, 2002; Tyler, 2006a; Bottoms and Tankebe, in press). Social institutions need legitimacy if they are to develop, operate, and reproduce themselves effectively (Easton, 1965). This is as true for the police as it is for other institutions of government. But peculiar to the police function is the statesponsored use of violence and force, the resolution of conflict, and the enforcement of legally-prescribed conduct and rule-following (Banton, 1964; Bittner, 1970; Reiner, 2010). Police legitimacy and public consent are necessary conditions of the justifiable use of state power: those who are subject to policing must see the police as right and proper (Tyler, 2006b, 2011a; Schulolfer et al., in press).[2]

By linking legitimacy to public compliance, Tyler's work generates a psychology of authorization and consent. The legitimacy of the police and the law leads to a respect for legal guidelines for action that dictates appropriate and personally binding behaviour. These guidelines may not be perfectly aligned with everyone's moral system. We do not always agree with the moral force of each and every law. But legitimacy involves the public recognition that the social order needs a system of laws that generate compliance and respect above and beyond individual preferences (or disagreements) with specific laws. When people believe it is morally just to obey the law, so long as they know that a particular act is illegal, then the immorality of illegal behaviour becomes a given. A different sort of morality ‘kicks in.’ Naturally, there are other reasons why individuals do (or do not) comply with the law (Bottoms, 2001).

Limitations edit

According to Lawrence Solum, since legitimacy has different shades of meaning, it is very easy to make claims about legitimacy that are ambiguous or theoretically unsound so one needs to be extra care full before deploying the idea of legitimacy.[3] These multiple meanings are linked to distinct approaches to conceptualization and measurement, with scholars variably treating legitimacy as a property of an object, a perception of observers, or a characteristic of certain social environments.[4]

Legitimacy and legal socialisation edit

Compliance may be related in large part to habitual or routinized behaviours and orientations. If one complies with the law because such compliance is ‘ingrained in everyday life’ (Robinson and McNeill, 2008: 436), it is unlikely that one will perceive breaking the law as an option when confronted with a situation which, objectively at least, offers such an opportunity. Equally, there will be those who are deterred by the presence of formal or informal mechanisms of social control. Genetic and psychological factors may be an influence; community context and effects might also be important; all these and other notions have been brought to bear on attempts to explain why people commit crime.

See also edit

References edit

  1. ^ a b Hilbink, Thomas. "The Power of Legitimacy in Obedience to the Law (Introduction to Legal Studies (Legal 250-2) UMass Amherst, Spring 2007 (Hilbink) March 6, 2007)" (PDF). www.umass.edu/. Retrieved 30 June 2017.
  2. ^ a b Jackson, Jonathan; Bradford, Ben; Hough, Mike; Myhill, Andy; Quinton, Paul; Tyler, Tom (13 March 2013). "Why Do People Comply with the Law? Legitimacy and the Influence of Legal Institutions". British Journal of Criminology. 52 (6): 1051–1071, 2012. doi:10.1093/bjc/azs032. SSRN 1994490.
  3. ^ Solum, Lawrence. "Legal Theory Lexicon: Legitimacy (January 25, 2010)". Legal Theory Lexicon. Retrieved 30 June 2017.
  4. ^ Schoon, Eric W. (2022-03-10). "Operationalizing Legitimacy". American Sociological Review. 87 (3): 478–503. doi:10.1177/00031224221081379. ISSN 0003-1224. S2CID 242149392.

External links edit

January 01, 1970
legitimacy, criminal, confused, with, legitimacy, family, legality, legitimacy, political, this, article, multiple, issues, please, help, improve, discuss, these, issues, talk, page, learn, when, remove, these, template, messages, this, article, needs, additio. Not to be confused with Legitimacy family law legality or Legitimacy political This article has multiple issues Please help improve it or discuss these issues on the talk page Learn how and when to remove these template messages This article needs additional citations for verification Please help improve this article by adding citations to reliable sources Unsourced material may be challenged and removed Find sources Legitimacy criminal law news newspapers books scholar JSTOR June 2017 Learn how and when to remove this message This article has an unclear citation style The references used may be made clearer with a different or consistent style of citation and footnoting July 2017 Learn how and when to remove this message This article provides insufficient context for those unfamiliar with the subject Please help improve the article by providing more context for the reader July 2017 Learn how and when to remove this message Learn how and when to remove this message In law legitimacy is distinguished from legality see also color of law An action can be legal but not legitimate or vice versa it can be legitimate but not legal Shamash seated depicted as handing symbols of authority to Hammurabi relief on the upper part of the stele of Hammurabi s code of laws Thomas Hilbink suggests that the power to compel obedience to the law is derived from the power to sway public opinion to the belief that the law and its agents are legitimate and deserving of this obedience 1 Where as Tyler says Legitimacy is a psychological property of an authority institution or social arrangement that leads those connected to it to believe that it is appropriate proper and just Tyler 2006b 375 Thus viewed the legal legitimacy is the belief that the law and agents of the law are rightful holders of authority that they have the right to dictate appropriate behaviour and are entitled to be obeyed and that laws should be obeyed simply because that is the right thing to do Tyler 2006a Tyler 2006b cf Easton 1965 2 Contents 1 Development of legal legitimacy 2 Limitations 3 Legitimacy and legal socialisation 4 See also 5 References 6 External linksDevelopment of legal legitimacy editPeter Kropotkin suggested that acceptance of the rule of law developed in response to the rampant abuse of authority by the nobility post advent of the middle class after the French Revolution strict adherence to the law was conceived as the ultimate equalizer within society Whatever this law might be Kropotkin writes it promised to affect lord and peasant alike it proclaimed the equality of rich and poor before the judge 1 To establish that a government action can be legal whilst not being legitimate e g the Gulf of Tonkin Resolution which allowed the United States to wage war against Vietnam without a formal declaration of war It is also possible for a government action to be legitimate without being legal e g a pre emptive war a military junta An example of such matters arises when legitimate institutions clash in a constitutional crisis Legitimacy is the right to rule and the recognition by the ruled of that right Sternberger 1968 Beetham 1991 Coicaud 2002 Tyler 2006a Bottoms and Tankebe in press Social institutions need legitimacy if they are to develop operate and reproduce themselves effectively Easton 1965 This is as true for the police as it is for other institutions of government But peculiar to the police function is the statesponsored use of violence and force the resolution of conflict and the enforcement of legally prescribed conduct and rule following Banton 1964 Bittner 1970 Reiner 2010 Police legitimacy and public consent are necessary conditions of the justifiable use of state power those who are subject to policing must see the police as right and proper Tyler 2006b 2011a Schulolfer et al in press 2 By linking legitimacy to public compliance Tyler s work generates a psychology of authorization and consent The legitimacy of the police and the law leads to a respect for legal guidelines for action that dictates appropriate and personally binding behaviour These guidelines may not be perfectly aligned with everyone s moral system We do not always agree with the moral force of each and every law But legitimacy involves the public recognition that the social order needs a system of laws that generate compliance and respect above and beyond individual preferences or disagreements with specific laws When people believe it is morally just to obey the law so long as they know that a particular act is illegal then the immorality of illegal behaviour becomes a given A different sort of morality kicks in Naturally there are other reasons why individuals do or do not comply with the law Bottoms 2001 Limitations editAccording to Lawrence Solum since legitimacy has different shades of meaning it is very easy to make claims about legitimacy that are ambiguous or theoretically unsound so one needs to be extra care full before deploying the idea of legitimacy 3 These multiple meanings are linked to distinct approaches to conceptualization and measurement with scholars variably treating legitimacy as a property of an object a perception of observers or a characteristic of certain social environments 4 Legitimacy and legal socialisation editThis section needs additional citations for verification Please help improve this article by adding citations to reliable sources in this section Unsourced material may be challenged and removed June 2017 Learn how and when to remove this message Compliance may be related in large part to habitual or routinized behaviours and orientations If one complies with the law because such compliance is ingrained in everyday life Robinson and McNeill 2008 436 it is unlikely that one will perceive breaking the law as an option when confronted with a situation which objectively at least offers such an opportunity Equally there will be those who are deterred by the presence of formal or informal mechanisms of social control Genetic and psychological factors may be an influence community context and effects might also be important all these and other notions have been brought to bear on attempts to explain why people commit crime See also editAcceptance Legitimacy political Legal anthropology Narrative Rational legal authorityReferences edit a b Hilbink Thomas The Power of Legitimacy in Obedience to the Law Introduction to Legal Studies Legal 250 2 UMass Amherst Spring 2007 Hilbink March 6 2007 PDF www umass edu Retrieved 30 June 2017 a b Jackson Jonathan Bradford Ben Hough Mike Myhill Andy Quinton Paul Tyler Tom 13 March 2013 Why Do People Comply with the Law Legitimacy and the Influence of Legal Institutions British Journal of Criminology 52 6 1051 1071 2012 doi 10 1093 bjc azs032 SSRN 1994490 Solum Lawrence Legal Theory Lexicon Legitimacy January 25 2010 Legal Theory Lexicon Retrieved 30 June 2017 Schoon Eric W 2022 03 10 Operationalizing Legitimacy American Sociological Review 87 3 478 503 doi 10 1177 00031224221081379 ISSN 0003 1224 S2CID 242149392 External links edithttp www umass edu legal Hilbink 250 S07 20model2 pdf http lsolum typepad com legaltheory 2010 01 legal theory lexicon legitimacy html http www legalanthology ch globalization 3 contributions types of reception https ssrn com abstract 901885 Max Weber By Frank Parkin Extra Legal Power and Legitimacy Perspectives on Prerogative edited by Clement Fatovic Benjamin A Kleinerman Narration and Narrative in Legal Discourse Legal Anthropology An Introduction By James M Donovan Retrieved from https en wikipedia org w index php title Legitimacy criminal law amp oldid 1155555559, wikipedia, wiki, book, books, library,

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