What Makes Law Our Law? A New Justification for Procedural Legitimacy

In his contribution to the recently published volume Public Reason and Courts, Mattias Kumm provides a theory of constitutional authority. In my view, this theory is founded on intuitive foundations and I hope to complement these intuitions with a more comprehensive theory. In the following short commentary on his chapter, I will defend his argument and attempt to provide a deeper theoretical account of his concept of legitimacy.

According to Kumm, the primary role of public institutions is to settle disagreements. Two types of disagreements are at stake here–substantive and procedural. He writes:

If a core task of public institutions is to settle reasonable disagreement as to what counts as just among us, then any such settlement needs to meet two requirements to be justified. First, the result of the settlement itself must be justifiable to everyone over whom the settlement claims authority. In that sense the decision must meet a substantive reasonableness test. […] [S]econd, the procedural requirement comes in: Reasonable (although not necessarily just or correct) settlements of justice claims are justified if the procedure used to settle them meets standards of justifiability. Only if the procedure used is a reasonable interpretation about what procedural justice requires with regard to decisions of that kind among and free and equals, is it a procedure that can result in authoritative settlements?

Let me first say what I believe to be the Achilles heel of this description. For me, the least intuitive claim here is the claim that there are procedural constraints which need to be met independently of their contribution to substantive justice. Under Kumm’s view I may adopt a rule which is wrong (although not unreasonable) simply because it is one that meets the requirements of procedural justice and prefer it over another rule which is superior in terms of substantive justice for this reason. This sounds intuitively right but the question is why? What can justify the selection of a rule which is not the best?

Joseph Raz provided the strongest and most robust challenge to this view and developed a theory of authority that in principle rejects the claim that procedure has any intrinsic value. Raz believes that a person or an entity has authority if its commands are likely to bring about more (or better) convergence between behavior and right reason than would have been brought about otherwise. Legal (like any other form of) authority is a mere instrument and, hence, procedural justice has no value in itself. Procedure is merely a means to the achievement of just results. Raz also adds that de facto authority is required for instrumental reasons; law cannot guide us to do the right things unless it is widely complied with.

The logic underlying Raz’s conception of authority challenges the very concept of procedural justice. The success of law in fulfilling its function depends solely on its prospects of identifying correctly what morality (or, more broadly, reason) requires and on its potential to move people to act in accordance with it. Law makes a difference in moral space only if it is likely to bring about more (or better) convergence between behavior and the demands of right reason than would have been brought about without law (or: without complying with law).

How can we address Raz’s challenge, namely the challenge questioning the value of procedural justice and legitimacy? Does procedural justice exist or is it merely (as Raz believes) parasitic upon the quality of its results, namely substantive justice? I wish here to complement Kumm’s analysis and to explain better the attraction of procedural justice. This explanation is taken from a joint paper I wrote with Avihay Dorfman entitled Law as Standing.

Assume that the existing legal system grants Kevin, a private person, the power to determine what legal duties we have and how to enforce these duties. Assume also that Kevin satisfies the requirements set by Raz. He can better identify what reason requires and instructs us how to behave. Alternatively, the discussion can be extended to capture the case of Kevin asserting sovereignty over a stateless island inhabited by a collection of individuals. Now, Kevin decides that the inhabitants must have a legal duty against punching others in the face and he also implements the fairest and most efficient mechanism of enforcing this duty. It seems that no one has a reason to complain about owing such a legal duty. What else could be asked from a legislator or any other official?

Kumm’s intuition–which I share–is different. In fact, Kumm’s intuition is that even if Kevin meets the requirements set by Raz, everyone is entitled to resist his imposition, and I will add that this is simply because it is made by Kevin. This intuition rests on the conviction that all individuals are free and equal and that, therefore, no private person can occupy a position of deciding what moral prescriptions are binding upon others.  Given that the law is binding on all of us, Kevin lacks the standing to dictate what the law is. The complaint against Kevin is not that he is incapable of identifying what norms bind us or that he is not effective in facilitating coordination. Instead, the problem is that he cannot speak and act in our name.

This is therefore the underlying concern: Kevin does not speak in our name. What procedural justice aims to realize is that decisions made by representatives as a normative matter are made by us – the citizens or, at least, in our name. It is thus Kevin’s persona as a private person which accounts for his lack of standing. What Kevin needs to be in order to satisfy the requirements of procedural justice is to become the pipe voicing our decisions and our choices–to become a public official.

Freedom and equality preclude the possibility for a private person to call into law the demands of reason. Basic equality among people is inimical to the idea that any private individual can determine for all of us what legal rights and obligations we have. Furthermore, legal orders directed at us by a private person violate our independence by turning us into this person’s subjects. After all, this person does not merely remind, advise, or educate his peers that there is a pre-existing moral obligation to refrain from acting in certain ways but rather he purports to make it a legally binding norm. He therefore claims a certain power over other private persons, namely, to credit his judgment with obligatory status for them. No private person can do this.

What accounts for Kevin’s failure to bind us is the fact that his decision to impose the duty at issue is fundamentally his own. Kevin’s failure comes down to his standing: He may truly be acting in our best interest, but what is missing is that he does not act in our name. Procedural justice should be equated with mechanisms that make law our creation and thus grant law its legitimacy. Raz’s understanding of authority rests on the view that justice is the only virtue of the legal system. Kumm and I share the view that legitimacy is a separate virtue of the legal system and I would even dare to say that legitimacy comes first in the order of explanation of law, as it bears on a noncontingent aspect of the interaction between law and morality. Prior to the question of whether the law is just, one ought to explore whether the law is our law.

This is a revised version of the commentary delivered during the online book launch event Public Reason and Courts on June 18, 2020. It draws on arguments laid out in Dorfman/Harel 2020: “Law as Standing”, available at SSRN. The book chapter “We Hold These Truths to Be Self-Evident”: Constitutionalism, Public Reason, and Legitimate Authority by Mattias Kumm is available here.

Written by

Alon Harel holds the Phillip and Estelle Mizock chair in administrative and criminal law at the Hebrew University in Jerusalem. In 2019/20 he is a Fellow at the Wissenschaftskolleg Institute of Advanced Studies in Berlin.
Website at the Hebrew University of Jerusalem

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