The Legitimacy of the People
| Published date | 01 October 2007 |
| Author | Sofia Näsström |
| DOI | 10.1177/0090591707304951 |
| Date | 01 October 2007 |
| Subject Matter | Articles |
Volume 35 Number 5
October 2007 624-658
© 2007 Sage Publications
10.1177/0090591707304951
The Legitimacy of the People
http://ptx.sagepub.com
hosted at
Sofia Näsström
http://online.sagepub.com
Stockholm University, Sweden
In political theory it goes without saying that the constitution of government
raises a claim for legitimacy. With the constitution of the people, however, it
is different. It is often dismissed as a historical question. The conviction is
that since the people cannot decide on its own composition the boundaries of
democracy must be determined by other factors, such as the contingent forces
of history. This article critically assesses this view. It argues that like the
constitution of government, the constitution of the people raises a claim for
legitimacy. The failure to see this is what makes many theorists run into the
arms of history. They submit the legitimacy of the people to the arbitrary and
asymmetrical forces of the present.
Keywords:
legitimacy; the people; consent; contingency; constitution
Legitimacy is today intrinsically bound up with the constitution of gov-
ernment. The prevailing idea of legitimacy is that government must
rest on the consent of the governed.1 But what about the people? Does it
make sense to speak of the legitimacy of the people?
Few political theorists question the importance of the people as a legit-
imizing force in politics. The people has in its power to confer legitimacy
upon governments, parties and policies, a fact which makes it one of the more
used and abused concepts in the history of politics. To speak “in the name of
the people” is to speak the language of power. It can be employed for a vari-
ety of purposes, as a bolster for kingship, as a justification for the resistance
against the king or, as the case is today, as a call for both cosmopolitans and
nationalists to reclaim power to the people in the face of globalization.2 But
drawing attention to the people as a source of legitimacy is one thing, and
Author’s Note: Earlier versions of this article have been presented at the Stockholm seminar
in political theory and at the workshop “Power, Legitimacy and the Political” at the Third
Annual Conference in Political Theory in Manchester. I would like to thank the participants of
both groups for valuable comments, in particular Benjamin Arditi, Andreas Gottardis, Noel
O’Sullivan, and Alexandra Segerberg. I would also like to express my gratitude to Margaret
Canovan, the editor Mary G. Dietz, and two anonymous reviewers for many helpful sugges-
tions in the final completion of the article. The article was made possible through a research
grant from the Swedish Research Council.
624
Näsström / The Legitimacy of the People
625
asking for its own legitimacy another. Interestingly enough, this latter ques-
tion has received little attention in political theory. “How to decide who
legitimately make up ‘the people,’” writes Robert Dahl, “is a problem
almost totally neglected by all the great political philosophers who write
about democracy.”3
Globalization has not done much to change this condition. Despite
increasing talk of boundaries, borders and peoplehood, the attempt to confer
legitimacy upon the people remains a rarity in political theory. The constitu-
tion of the people is typically brought up as a question of identity—does it
need to be thick or thin in order for democracy to work?—whereas its legit-
imacy remains unexplored.4 If one listens to many liberal and deliberative
theorists of legitimacy, including Robert Dahl himself but also Jürgen
Habermas, Frederick G. Whelan, Seyla Benhabib and Rogers M. Smith,
there is a good reason for this. The constitution of the people, they argue,
escapes the hold of both human rights and democracy. For while human
rights may be valuable in protecting the interests of citizens, they have little
to say on the boundaries of the citizenry itself. “Human rights,” as Smith
puts it, “transcend boundaries; they do not define them.”5 With democracy,
the problem is reversed. The fact is, writes Whelan, that boundaries com-
prise a problem “that is insoluble within the framework of democratic
theory.” The persons who are supposed to confer legitimacy upon the people
are trapped in an infinite circle of self-definition. They cannot themselves
decide on their own composition.6
In an effort to alleviate the significance of this gap, these theorists adopt a
strategy of exclusion. They draw a Maginot line between history, on the one
hand, and legitimacy, on the other. The aim is to demonstrate that the initial
question is misconstrued and that there is no such thing as a “legitimate”
people. Who gets to be included in the people is not a democratic but a his-
torical question. It results from the contingent forces of history. In discussing
the people we have no choice but to assume the position of the historian:
Since the voluntariness of the decision to engage in a law-giving praxis is a
fiction of the contractualist tradition, in the real world who gains the power
to define the boundaries of a political community is settled by historical
chance and the actual course of events—normally, by the arbitrary outcomes
of wars and civil wars.7
To see the implications of this argument it might be useful to make a brief
comparison. Imagine that someone were to make the same argument, only
this time we substitute the constitution of the people with the constitution
626
Political Theory
of government. The notion of a legitimate government, we are told, is a fic-
tion of the social contract tradition. Who gets to rule in society is not a
democratic question. It is determined by the actual course of events, by the
arbitrary forces of power, contest or civil war. Now, governments are not
ideal constructions. They are seldom as legitimate as we would wish them
to be. But to argue that there is no such claim to be made—to say that we
must give up the notion of a legitimate government and accept that govern-
ments are shaped by historical forces—is a thought that most of us proba-
bly would find odd, if not undemocratic. It reminds us of the early
conservative critique of the social contract tradition.8 And yet, this is pre-
cisely what many liberal and deliberative theorists ask us to accept in the
case of the people. Why is that? What makes the constitution of the people
different from the constitution of government? Why is the latter a question
of legitimacy, and the former not?
The purpose of this article is to critically assess the rationale behind the
Maginot line. Like the constitution of government, the constitution of the
people raises a claim for legitimacy. The difficulty to see this has to do with
how one understands the gap in the constitution of the people. What many
liberal and deliberative theorists have in common is that they interpret the
gap as a problem, a fact which prompts the resignation to history. Since it
is impossible to arrive at a self-constituted people, defending democracy for
these theorists becomes tantamount to defending the line between history
and legitimacy.
As I shall argue, however, this interpretation overlooks its democratic sig-
nificance. Teasing out the normative underpinnings of consent within the
early social contract tradition, this article demonstrates that the impossibil-
ity of the people to account for its own constitution forms part of the theory
of legitimacy. The criteria of legitimacy do not add up into a coherent whole.
They contain a gap, or what Claude Lefort refers to as “the dissolution of the
markers of certainty”—a moment of contingency that guarantees the con-
tinuation of the democratic project.9 Contrary to what is assumed by many
liberal and deliberative theorists of legitimacy, the gap in the constitution of
the people is therefore not a problem. It is productive, a generative device
that helps to foster ever new claims for legitimacy. The failure to see this is
what makes them run into the arms of history. They surrender the claim of a
legitimate people to the contingent and often violent forces of history.
This article is not alone in its attempt to make the people into a question
of legitimacy. Margaret Canovan, Bonnie Honig, Alan Keenan, and Chantal
Mouffe belong to those who in recent years have called attention to the
Näsström / The Legitimacy of the People
627
paradox of founding a legitimate people.10 Although they associate the
paradox with different theoretical sources—with republicanism or with the
tension between liberalism and democracy—they often converge in their
critique of liberal and deliberative democracy. They call for a politics of
contestation, stressing that the search for consent undermines the contin-
gent, productive, and above all political nature of the people.11 The present
article takes side with these theorists in seeing the impossibility of closure
as a constitutive element of legitimacy. However, it differs in that it traces
this element right to the centre of modern consent theory itself. As I shall
argue, it is precisely because we adhere to the principle of consent that the
disagreement on the constitution of the people has productive force.
The article begins with an examination of the Maginot line. What is the
rationale behind this exclusionary strategy? It then situates the constitution
of the people within the early social contract tradition and its idea of legit-
imacy based on consent. It shows that this familiar tradition can be inter-
preted to hold two different frameworks of legitimacy—one concerned with
government...
To continue reading
Request your trial