Legitimacy (criminal law)
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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
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
By linking legitimacy to
Limitations
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
This section needs additional citations for verification. (June 2017) |
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
References
- ^ 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.
- ^ SSRN 1994490.
- ^ Solum, Lawrence. "Legal Theory Lexicon: Legitimacy (January 25, 2010)". Legal Theory Lexicon. Retrieved 30 June 2017.
- S2CID 242149392.
External links
- http://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