50 Pages Posted: 21 Nov 2001
Date Written: November 1, 2001
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) if laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed as one component of a lawmaking system. To the extent a particular constitution establishes law-making procedures that adequately assure the justice of enacted laws, it is legitimate even if it has not been consented to by the people. This account of constitutional legitimacy does not assume any particular theory of justice, but rather is intermediate between the concept of justice and the concept of legal validity.
JEL Classification: K100, K10
Suggested Citation: Suggested Citation
Barnett, Randy E., Constitutional Legitimacy (November 1, 2001). Boston Univ. School of Law Working Paper 01-19. Available at SSRN: https://ssrn.com/abstract=291145 or http://dx.doi.org/10.2139/ssrn.291145