Legitimacy, institutions for conflict resolution, and their cross-fertilization
* Published as part of the 2023 CoI conference: 'Towards just institutional approaches to conflict prevention and resolution *
Most people will agree that a key aspect of institutions for conflict resolution is their legitimacy. What legitimacy exactly means, however, is subject to debate. For example, some people may think of the level of trust the general public puts in public institutions (which is sometimes used as an operationalization of empirical legitimacy), and how such trust may drop after scandals like the childcare benefits scandal in the Netherlands. Others may think of the extent to which institutions meet certain normative principles, such as the principle of equality. The current blog highlights some of the questions addressed in a recently published special issue by discussing what legitimacy is (according to various approaches), why it matters, how studying institutions for conflict resolution can yield a better understanding of legitimacy, and the other way around.
What is legitimacy and why does it matter?
As we explain in the introduction to the special issue, which we use as the basis for this blog, legitimacy is often defined as the right to rule or the right to govern. Thus, legitimate authority entails more than the exercise of naked power and does not need to rely solely on force to sustain it. This is what many legitimacy researchers agree on – but beyond this point, academic views on what legitimacy means start to differ. Indeed, legitimacy can be rightfully termed an essentially contested concept, which makes it all the more interesting to dive into its contents.
As referred to in the introduction to this blog, one major divide is that between normative and empirical approaches to legitimacy. Whereas normative approaches ask whether an authority (such as a particular institution for conflict resolution) ought to be considered legitimate, empirical approaches examine whether an authority is perceived as legitimate by members of the public. The question whether an authority is legitimate in a normative sense can be answered by assessing the authority against a certain yardstick, such as a principle of law or an ethical standard. Researchers interested in empirical legitimacy, on the other hand, often conduct surveys or qualitative interviews to get at people’s legitimacy perceptions.
Another important distinction is that between substantive and procedural legitimacy. To study legitimacy from a substantive perspective, researchers ask whether certain principles (such as the principle of equality or proportional sentencing) are served by the exercise of authority. In contrast, researchers who study legitimacy from a procedural perspective look at the way in which authority is exercised, the procedures an authority employs, and how people are treated by the authority.
A third and final distinction is that between static and dynamic approaches to legitimacy. Static approaches consider legitimacy as a stable trait of authorities, something which can be achieved or moved away from. Instead, dynamic approaches recognize that legitimacy is not something fixed but has different meanings depending on the time and place. Furthermore, dynamic approaches conceive of legitimacy as a constant dialogue between an authority and the members of society: the authority makes a claim to power, to which members of society respond, and depending on this response the authority might adjust their power claim (and so forth).
As this brief sketch makes clear, the question why legitimacy matters depend on the approach to legitimacy one takes. For instance, from a normative point of view, an important reason to be concerned with questions regarding legitimacy is that it can be used as a yardstick against which to measure the quality of an authority. Empirical scholars (especially in the field of procedural justice) often point to the role legitimacy plays in bringing about compliance: when people perceive an authority as legitimate – for instance, because the authority treats them fairly – they are more inclined to cooperate and more likely to abide by the law. Either way, that legitimacy matters is something on which most people will agree. Taking the importance of legitimacy as our point of departure, we now examine whether and how a focus on institutions for conflict resolution can enhance our understanding of legitimacy, and vice versa.
What does studying institutions for conflict resolution teach us about legitimacy?
In the special issue, we focus on legitimacy of institutions for conflict resolution in particular. The papers included in the issue reveal several ways in which studying institutions for conflict resolution adds to our understanding of legitimacy. One is that, because of its focus on social problems that need to be approached from a variety of perspectives, research on legitimacy of institutions for conflict resolution will often need to rely on a hybrid conception of legitimacy rather than a purely normative or purely empirical approach. Furthermore, a focus on institutions for conflict resolution helps us gain a better understanding of some of the dimensions of legitimacy discussed earlier. For instance, papers included in the special issue clarify what the notion of a dialogic approach to legitimacy may entail when there are multiple audiences involved (e.g., an authority as well as multiple parties to a conflict), and what substantive legitimacy may look like more concretely (e.g., by pointing to discrepancies between the moral values of authorities versus members of the public). Another way in which studying institutions for conflict resolution can add to our insights on legitimacy is that it sheds light on the different objects of legitimacy. That is, whereas much of the existing research on legitimacy focuses on the nation state and its government, the papers included in the special issue show that the object of legitimacy may include concrete rules and procedures, judges and courts, executive authorities, supranational bodies, and non-state actors. And, finally, research on legitimacy of institutions for conflict resolution may point to innovative research methods – for example, by examining behaviors that express legitimacy rather than surveying people about their legitimacy perceptions.
What does adopting the lens of legitimacy teach us about institutions for conflict resolution?
Vice versa, the papers included in the special issue show that examining institutions for conflict resolution from the perspective of legitimacy can enhance our understanding of these institutions as well. First and foremost, because legitimacy provides a relevant assessment framework in light of which to evaluate institutions for conflict resolution, as explained earlier. In this sense, legitimacy can serve as a quality indicator. To come back to the example given in the introduction to this blog, one could for instance view the childcare benefits scandal as an indication of a lack of quality of some public institutions. In addition, researchers can examine the extent to which institutions are accepted as legitimate by members of society, as several of the papers included in the special issue do. A second reason why adopting the lens of legitimacy can enhance our understanding of institutions for conflict resolution is that adopting this perspective moves us beyond the problem-solving capacities of these institutions. Thus, rather than examining them only in light of whether they are able to prevent and solve problems, researchers may look at other aspects of these institutions’ legitimacy – such as the extent to which they offer (legal or perceived) procedural fairness and the extent to which their moral values align with those of the general public.
Taken together, we see several possibilities for cross-fertilization between the concepts of legitimacy and institutions for conflict resolution. Further research on this topic would do well, we think, to include qualitative methods and techniques, and to integrate empirical and normative approaches to legitimacy – the added value of which is demonstrated by the contributions that make up the special issue.
Lisa Ansems is a postdoctoral researcher at the Institute of Criminal Law and Criminology of Leiden University, the Netherlands.
Lucas Noyon is a law clerk at the Supreme Court of the Netherlands and is a guest researcher at the Institute of Criminal Law and Criminology of Leiden University, the Netherlands.
Thomas Riesthuis is an assistant professor in legal theory at the Institute of Constitutional Law, Administrative Law and Legal Theory of Utrecht University, the Netherlands.
Ronald Tinnevelt is a professor in legal philosophy at the Research Center for State and Law of Radboud University, the Netherlands.
