Constitutional Legitimacy: An Analysis under Max Weber's Traditional Sources of Authority

9 Pages Posted: 21 Dec 2012 Last revised: 25 Mar 2013

Date Written: April 7, 2012

Abstract

Constitutional legitimacy is a virtue rooted in a system of belief: the acceptance that an exercise in power is justified and therefore authorized, either implicitly or explicitly, by society at large. The concept of legitimacy must be distinguished from the concept of legality; an illegal action may be legitimate in the eyes of the people, and conversely, simply because an action is legal does not always imply that it is legitimate.

The constitution is integral to the effective functioning of the legal system – as the foundation upon which all subsequent legal institutions derive their power from, it represents the bridge between legality and legitimacy. The constitution serves to limit the power of the state and the majority, protecting the rights of individuals and minority groups according to the principles enshrined within.

While the constitution lends legal legitimacy to all subsequent laws, institutions and actors, the formation of the constitution itself is necessarily an extra-constitutional, or an unconstitutional process. The underlying logic behind this statement is that a constitution cannot effectively “give birth” to itself, given its role as the progenitor from which all legal legitimacy springs forth.

This gives rise to a “legitimacy gap”; a constitution must be therefore be legitimized by non-constitutional sources. Even in the rare instance where a prior constitution lays provisions for its self-replacement, the original constitution must have derived its authority from a non-constitutional source. As noted in the above quotation by Thitinan Pongsudhirak, a notable Thai political scientist, this extra-constitutional legitimacy is not rooted in any one source; but rather, legitimacy is obtained through a combination of sources driven by the specific contextual underpinnings of society.

This is in contrast to conventional lawmaking, where legal legitimacy is presumed. Establishing this extra-constitutional legitimacy is a necessary pre-condition to the success and sustainability of a new constitution. Establishing this legitimacy is arguably more important than the substantive provisions of the constitution, as a constitution that is substantively flawed but perceived as legitimate may yet endure, but a model constitution deemed illegitimate in the eyes of the people will never endure. In essence, the constitution must first capture the “hearts and minds” of the people.

The procedural framework and the actual process of drafting are both critical elements in establishing this extra-constitutional legitimacy. The following case studies demonstrate how constitution-makers either garnered the support of or were undermined by extra-constitutional sources of legitimacy. I shall conduct my analysis through the lens of Max Weber’s three sources of legitimacy: (1) charismatic authority, (2) traditional authority, and (3) rational-legal authority.

Suggested Citation

Chau, Brian, Constitutional Legitimacy: An Analysis under Max Weber's Traditional Sources of Authority (April 7, 2012). Available at SSRN: https://ssrn.com/abstract=2192172 or http://dx.doi.org/10.2139/ssrn.2192172

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