The Question of Legitimacy

Issalys (2005) argues that given the relationship and interdependence between democracy, law and values, the question of legitimacy is both a relevant and important consideration in the question of choosing between forms of public action.  This argument is made in the context of what Issalys (2005) calls the “challenge of explosion”, referring to the wide proliferation of complexity and uncertainty, resulting from 1) the proliferation of legal forms of public and 1) the proliferation of perspectives from which we consider the legitimation of the forms of public action.

Issalys (2005) argues that “among the forms of public action, there must be criteria for concluding that one of them is more legitimate because it is better adapted to the characteristics of the situation at hand.  The three perspectives on legitimation described above suggest their own: the formalism of legality, technical or political rationality, and the application of values.  Competition between these perspectives must not force us to decide among them.  It suggests instead that the desired legitimacy of public action is in fact plural.  None of these perspectives should, it seems, exclude the others.  Each must be taking into consideration and put to debate when preparing to choose the form of public action.  The choice of that form will emerge from a critical examination of the recommended solutions based on each opposing perspective.  The justification of this choice will thus be an argued justification.” (pg 169).  Table 1 outlines the justificatory criteria Issalys identifies.  Table 2 present a proposed method for implementing the justificatory approach.

 Table 1 (From Issalys, 2005):

 Perspectives

Criteria 

Principles 

 Values

 Forms

 Political leader’s perspective

Political control

The impetus of public action belongs to public action.

Collective self-government

Forms that are directly or indirectly under Parliament’s effective control.

Citizen’s perspective 

Quality of public space

Public action should be subject to citizen deliberation and review

Civic engagement

Forms that encourage participation, communication, deliberation, accountability, and evaluation in a public space.

Lawyer’s perspective

Fairness

Public action should respect the people. rights, and interests it affects.

Procedural justice

Forms displaying appropriate degrees of individualization and incorporating a rule-bound process

Expert’s perspective

Technical competence

Public action should be 

 Knowledge, especially scientific

Forms that help to enlighten action by accumulating and confronting expertise.

 Administrator’s perspective

Economy of means

Public action should pursue its objectives through the best use of the resources of the government, the economy, and civil society

Optimal use of resources

Forms that minimize costs and drains on resources and that focus on simplicity.

 Note: Each perpective calls into play a criterion based on a principle referring to a value that urges preference for certain forms of public action.

Table 2 (From Issalys, 2005)

 1)   Define the task to be performed with the proposed rules:

       A) Distinguish the tasks included in the proposed action.

       B) Specify the purposes of the proposed action and the addresses of potential rules.

2)  Weigh the five justifactory criteria in relation to the task:

       A)  Appraise the relevance and weight of each criterion taken separately.

       B)  Appraise the relative weight of the relevant criteria.

3)  Identify the preferences indicated by the criteria:

       A) Draw up a list of the most fully justified forms by each relevant criterion.

       B) By combining the lists, develop a range of options incorporating the forms with the strongest overall justification.

4)  Choose a form of public action from this short list (3B) that reflects the relative weighing of the criteria (2B).

 

Detailed information on this subject can be found in:

Issalys, Pierre. 2005.  Choosing among Forms of Public Action: A Question of Legitimacy. In Designing Government: From Instruments to Governance (eds, M. Hill and M. Howlett. Montreal: McGill-Queen’s University Press, 154-81.

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