Legality and Legitimacy

Author(s): Alexander P. d'Entrves

Source: The Review of Metaphysics, Vol. 16, No. 4 (Jun., 1963), pp. 687-702
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LEGALITY AND LEGITIMACY

ALEXANDER

P. D'ENTR?VES

of two
the meaning
of this paper is to examine
JL he purpose
as
roots
in
their
indicate,
which,
very
political
theory
key-words
are first and foremost legal words?words
drawn from the vocab
The subject of legality and legitimacy
ulary of law, not of politics.
and
of
law
the
student
politics with a semantic puzzle to
presents
it is not quite easy to find a clear and definite answer.1
which
We all know of course more or less what
the answer of the
historian would
be if we turned to him alone for enlightenment.
to be sure, begin by pointing
out that throughout
He would,
two
the
notions
have
Western
of
history
legality and legitimacy
an
were
as
in
it
political thought, providing
important part
played
two of its most
solid pillars. Without
reaching as far back as the
the
recall to our attention
the historian would
Greeks,
probably
current in Medieval and Renaissance
distinction,
thought, between
of political power.
the rightfulness
the two criteria for establishing
in order to be "just," must be both legitimate
and law
Power,
the unjust ruler or tyrant may be defined
abiding.
Accordingly,
as ex defectu
ex parte exercitii as well
tituli.
His rule can be
for the manner

in which
it is exercised,
if he does not keep
the bounds of legality.
and is
But it can also be unjust,
if
it
that
lacks
which
confers
"title"
so,
proper
legi
inevitably
timacy upon it. The quest for that title, namely for the ultimate

unjust
within

*
1

A paper

read

to the Law

School

Faculty

at Yale

on December

6,

1962.

treatment
of the subject
I know
of is C. Schmitt's
specific
only
und Legitimit?t
Written
(1932).
Legalit?t
by a Nazi
supporter
on
it obviously
a strongly
seizure
of power,
of the Nazi's
presents
of the issues which
the subject
biassed
involves.
I have
picture
attempted
e legittimit?",
to clarify
in an article
these issues
in 1960 ("Legalit?
published
in onore
di E. Crosa,
vol.
recent
in Studi
La dottrina
book,
II) and in my
little

dello

The

essay,
the eve

Stato

(Torino,

1962).

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688

ALEXANDER

P. D'ENTR?VES

of authority, has long been the main concern of polit

the
Some among us are old enough
to remember
theory.
an
was
time when
in
still
doctrine
accepted
dynastic
legitimacy
our
not
In
is
and
does
invoked,
Europe.
day, legitimacy
rarely
seem to be any longer an intelligible political principle.
Yet there
to use it as
is still one European
statesman who does not hesitate
foundation
ical

a prop for his political doctrine,

if he has any.
Shortly after his
to power, President
accession
the startling claim
de Gaulle made
of national
that "for twenty years" he had been "the incarnation
seem
his
Some
of
actions
recent
legitimacy."
clearly to evince
to an American
the view which
he once candidly
expounded
visitor:
does not depend on legality, and legality
that "legitimacy
2
a proof of legitimacy."
is not necessarily
for history
So much
and the historian's
contribution
to our
Let us now turn to the social and political
scientists.
problem.
is
They too have an answer to our quest; the notion of legitimacy
a fairly familiar one in their writings.
use
it
to
the
illustrate
They
transition from the level of power to that authority.
"Authority,"
in Mr. Lasswell's
of power."3

words,
Borrowing

"is the expected and legitimate possession

a phrase which was first coined
a
by

of mine

fellow-countryman

at whose

feet

I sat

as

student?Gae

"the source
political
is the "political formula":
the body, that
and basis of legitimacy"
is, of accepted beliefs and values (also called the ideology) which,
and to the acceptance
in a given society, induce men to obedience
tano Mosca?modern

science

indicates

that

of the exercise of power as "just and proper."

This at any rate?if
his words?is
the view which Mr. Lasswell
I do not misinterpret
In a language
puts forward in his classic book Power and Society.
more
involved and obscure, Mr. Talcott Parsons defines "legitima
tion" as "the appraisal of action in terms of shared or common
of the action in the social
values in the context of the involvement
4
kind
wonder
this
of appraisal should be
One
may
why
system."
The answer may be,
referred to legitimacy rather than to legality.
2
3
S 6.5.

Authority,

Article
by D.
H. D. Lasswell
T.

Sch?nbrun

in New

and A. Kaplan,

Parsons,
"Authority,
ed.
C. J. Friedrich,

York
Power

Times
and

and

Legitimation,
(Cambridge,

Mass.,

Feb.

Magazine,
(New

Society

Political

1958),

p.

14,

Haven,
Action",
201.

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1960.
1950),
in

AND LEGITIMACY
LEGALITY
that political
of men rather

perhaps,
behavior

scientists

689
are concerned

with

the

actual

than with
the formal framework of their
actions.
At any rate, they seem to leave the problem of legality
to the lawyer, and for my part I would
certainly not be inclined
to blame them for doing so. But this places upon the lawyer a
further duty to clarify the issue of legality versus legitimacy.
at this point that we are reminded
It is precisely
of some
famous remarks by a no less famous social scientist.
Max Weber

treatment
left us a brief but fascinating
and
or, to
Legitimacy,
legitimacy.5
legality
of the existence of a
"the idea (Vorstellung)
to him a basic tool of social research,
for it
that the notion derives, of the "validity" of
to Weber,
According
history presents us with
or legitimation?though
validation
he warms
has

are never

of
of the problem
use his own words,
legitimate order," is
is from this concept
a given social order.
three basic types of
us that these types

to manifold
and lend themselves
and
modifications."
These
adaptations

"pure,"

mixtures,

"combinations,
types are:

"Charismatic"
the authority of a single
legitimacy, where
individual is ascribed to the special gifts with which he is endowed,
or believed to be endowed,
as in the case of a prophet or a hero (or
a F?hrer])
for that matter,
wrote before Nazism,
Weber
;
though
?
from
"Traditional"
where
derived
is
legitimacy,
authority
or from dynastic
the sacredness of precedent
succession;
?
"Rational"
where
is based on "a
legitimacy,
authority
rational rules (which may be agreed
system of consciously made
or
as
from
obedience
upon
above), which meet with
imposed
norms
obedience
is
claimed
whenever
such
binding
by
generally
the rule designates."
This type of legitimacy Weber
identifies with
In it, "every single bearer of powers of
legality.
command
and his
is legitimated
by the system of rational norms,
in so far as it corresponds
with
the norms.
power is legitimate
is thus given to the norms rather than to the person."
Obedience
him whom

The

relevant

from Weber's
sections
can
und Gesellschaft
Wirtschaft
on Law
in Economy
and Society,
M. Rheinstein,
ed. (Cambridge,
but see also Weber's
Wirt
Mass.,
pp. 3, 9, 336-337;
1954),
der Weltreligionen,
zur Religions
in Gesammelte
schaftsethik
Aufs?tze

be

found

Soziologie,

in Max

vol.

Weber

I, pp.

267-268.

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690

ALEXANDER

P. D'ENTR?VES

Now the interesting point about Weber's

treatment of legality
and legitimacy
is that, in his view, legality is the prevailing
type
of legitimacy
in modern
"the most
society.
"Today," he writes,
common
form of legitimacy
in legality,
is the belief
i.e., the
in enactments
that are formally correct and which
acquiescence
have

been

made

modern

societies,

modern

State,

to established
Most
according
procedure."
more
the
Weber
and
out,
points
particularly

are

"legal"

societies

societies,

where

"commands

are bestowed
not in the name of a personal
but in the
authority,
name of an impersonal norm;
and [where] in turn the exercise of
is in itself obedience
to a norm,
command
and not an arbitrary
a
or
a
In
decision,
short, we live in a
dispensation
privilege."
to be so;
world where
the rule of law is supreme or is expected
where obedience
is given to the laws, not to the persons.
We have
to law
thus tracing the roots of authority
power,
de-personalized
some
not
to
that
transcends
it.
itself,
mystical
principle
a great
I think that Weber's
remarks
contain
Personally,
amount of truth and that they shed a great amount of light on
at issue.
I am prompted
the question
not only
to this conclusion
me the
I
the
fact
time
have
to
asked
tell
the
that,
every
by
lawyers
some
between
difference
and
I
have
noticed
legality
legitimacy,
on their part, as if my question
embarrassment
seemed to them
or out of context.
But I am also inclined to agree
meaningless
on historical
with Max Weber
that the
since I believe
grounds,
contribution
thought was

to Western
which
legal theory has made
us
to
to
enable
in
read
legal terms,
political
politics
and if you like of the "State," as the
and to conceive of power,
In this
force but of lawful authority.
exercise not of arbitrary

greatest

sense

the

notion

Anglo-American

of

the

rule

of

law,

as well

as

our

as
are political
as well
the Rechtsstaat,
Western
theories
in which
the best tradition of
legal theories:
to produce
of a "legitimate
that notion
thought have combined
order," of a State based on law, which we consider one of the
of our civilization.
achievements
The rule of law, not
highest
the old idea of dynastic allegiance nor the modern
horrors of the
Continental

doctrine

of

is the bond that holds modern

societies together.
once put it in a humourous
vein, the modern man's
of the
of the State may well be expressed with a paraphrase

F?hrerprinzip,
As Dean Pound
notion

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LEGALITY AND

691

LEGITIMACY

Psalm:
"Propter legem tuam sustinui te, 6Domine!"?"Because
seems
thy law am I content with thee, o State."
Legality
to

have

as

become,

Weber

the

said,

modern

of
indeed
of

equivalent

legitimacy.
Now the question which
I would
like to raise at this point is
a very simple one, but one which
seems to me to be of the utmost
The question,
to put it in strictly analytical language,
importance.
is whether
the
notion of legality under that of legit
by subsuming
we
are
a judgment
not
of value into what
is
introducing
imacy
a purely
in essence
statement.
In plain,
descriptive
ordinary
even more
this doubt may
be expressed
speech,
by
forcibly
it is all very well to say, as Weber
says, that in the
remarking:
are bestowed
modern
in the name of impersonal
State "commands
as the best
legality has come to be considered
amount to
But
this
well
power.
safeguard against arbitrary
may
more
an
account
than
the
of
historical
does not
it
fact;
nothing
tell us much about the kind of legality which
alone can constitute
nor about the values which we consider worth
that safeguard,
norms"

and that

Are we

safeguarding.
imate,

any

order

legal

for that particular

of

attainment

the

minate

values?
without

such,

certain

alone
of

goals,

and consider

we

shall

reserve

our

that is established

the

of

insurance

legit

applause

in view
deter

certain

Are we

to make
of legality a fetish,
prepared
mere
to
the
respect of the rules of the
legitimacy

reducing

thereby
game,

or

of order

kind
of

to approve,

disposed
as

any

concern

for

the

game

itself,

whatever

its

stake

and whatever
its consequences?
I believe,
is the crucial
This,
the
which
modern
of
identification
question
legality and legit
we
I
must
that
raises.
submit
take
account
into
the fact that
imacy
the notion of legality is at variance in the modern world,
and that
in this variance we can find the key of many disturbing
diversities
in legal as well as in political thinking.
Let me enlarge briefly on
which
in
has been very much
this point
my mind ever since I have
a
made it habit of crossing
the Atlantic every year and of dividing
my

time between
That

Law,,

such

strikingly
expressions

6
address
Inaugural
Harvard
Trecentenary

by

different
as the

Roscoe
Publications,

surroundings.
"rule of law,"

The

Pound,

Future

"government

of

the

1937

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Common

692

ALEXANDER

P. D'ENTR?VES

are not exactly equivalent

but
law," l?galit?, Rechtsstaat
of
them
subtle
shades
different
is a
with
carry
many
implications,
on
in
who
that
the
the
met
minds
of
fact
lawyers
weighed
heavily
as
to
of "The Rule of Law
in 1957
discuss the problem
Chicago
in the West."
This should be no cause of surprise to
Understood
under

the countries
between
anyone who is aware of the deep differences
of Common Law and those of the Roman tradition.
To the Conti
act of
of a deliberate
nental mind,
law is primarily
the expression
"Lex est quod populus
iubet atque constituit" ; "La Loi
lawgiving:
est l'expression
de la volont? g?n?rale."
There is a close affinity,
an
not
of thought,
unbroken
necessarily
continuity
though
of
and
those
the French
the views of the Roman
between
lawyers
of
both
to
the
nature
and to the
law
with
Revolutionaries,
regard
as
back
is
the
historical
This
the
of
sovereign.
legislator
position
we
the
to
understand
must
in
mind
in
order
which
bear
ground
Continental
No

democracies'
in modern

of legality
interpretation
democracies
Continental

and legitimacy.
of
the notion

doubt,
of legitimation
the overall principle
provides
sovereignty
popular
the
But
of
test
of the whole
legal system.
legitimacy of each and
a merely
formal one,
norm
that
is
that
composes
system
every
derivation
and
the
ultimate
from,
to, the will
conformity
namely,
a token of legitimacy.
is
of
itself
thus
of the sovereign.
Legality
Such views have not only deeply affected our political thought,
they
are reflected
I need hardly remind
of our institutions.
in many

of legality has
the guarantee
countries,
that, in Continental
as
the
of
the
people against the
protection
always been conceived
action.
and
administrative
of executive
encroachment
Strange as
to provide
failed
have long
constitutions
it may seem, Continental
of the legislature.7
the omnipotence
against
adequate protection

you

Law.
It is
But I am not here concerned with Constitutional
that I
reflection of such views on legal thinking
to the particular
I have found in a passage of
like to call your attention.
would
a particularly
of the attitude of the
apt description
Tocqueville
to Tocque
on
the Continent.
according
Lawyers,
legal profession

to

7
illustrated
This point
is brilliantly
on Government
Conference
the Harvard

in Professor
under

A. Tune's
Law

contribution

(Cambridge,

1956).

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Mass.,

AND LEGITIMACY
LEGALITY

693

to public order beyond every other consid

"are attached
ville,
best
and
the
It must
eration;
security of public order is authority.
not be forgotten also"?continues
if they prize
Tocqueville?"that
value legality still more:
freedom much,
they generally
they are
the
less afraid of tyranny than of arbitrary power; and, provided
men
to
of
itself
of their independ
legislature undertakes
deprive
be
At first sight, one would
ence, they are not dissatisfied."8
inclined to describe such an attitude as conservative,
perhaps even
as
better be described
But I think that it might
reactionary.
on
the
deliberate
It
renunciation
agnostic.
implies
fundamentally
the part of the lawyer to pass any judgment on the content of the
a

law,

of

conception

legality

as

a matter

of

not

form,

of

substance.

It is as if the lawyer would

say : let the legislator take upon himself
to decide upon all major
issues; let him make the basic choices in
matters
of policy ; all I am concerned with is to ascertain whether
is correct, whether
this particular
it
rule, this particular decision
if I like or dislike it.
"Formalism"
is law, no matter
is an essential
of the Continental
characteristic
legal
approach to law.9 Modern
more
has
done
than to bring this assumption
nothing
positivism
to

extreme

its

logical

consequences.

on Conti
that the hold of positivism
only too well
is a stumbling block to American
nental legal thought
I
lawyers.
a
to
few
words
feel that I must
that
and
even,
say
hold,
explain
certain limits, to justify it. To begin with,
I would
within
like to
if blame it be, should not be levelled
point out that the blame,
us
It was John Austin after all
Continentals.
against
exclusively
I know

first drafted what may be called the positivist manifesto.

"The
one
or
is
merit
another.
of
law
its
demerit
existence
thing;
it be or be not is one inquiry, whether
it be or be not
Whether
an
to
is
A law,
assumed standard
another inquiry.
conformable
who

8
9
need

A.

de Tocqueville,
to say,

Needless

further

definition.

it indicates
lawyers,
which
the tendency
of substance
system.
to refer
italiana

and

In
not

in America,
2.
I, xvi,
term which
is a very
would
general
the sense
in which
it is used
by Continental
a justification
of "conceptualism"
in law, but

Democracy
"formalism"

only
I have
described,
on
to focus attention

to
the

of this
For an excellent
analysis
to an article
"Sul
by N. Bobbio,
e procedure
di diritto
I,
p?nale,

from

abstain
logical

any consideration
of a given
legal
I would
like
"formalism"

coherence

type of
formalismo

giuridico",

1958.

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in Rivista

694

ALEXANDER

P. D'ENTR?VES

actually exists, is a law, though we happen to dislike it, or

though itmay vary from the text, by which we regulate our appro
bation or disapprobation."10
It appears from these words
that the
of
first and basic requirement
for the positivist
is an attitude

which

If this be so, surely the Continental

lawyer
neutrality."
as it were,
to be a positivist.
is predestined,
In countries where
law is ruled out, where
is a com
judge-made
judicial review
recent
the
the
innovation,
paratively
only "existing,"
only "valid"
law is the one which
is laid down by the sovereign.
If this is the
"ethical

of legal
of fact, I can think of two valid justifications
first
advance
which
is
The
the remarkable
legal
positivism.
made by
science?our
Rechtswissenschaft?has
proud Continental
the positivist method.
It seems to me (though I am not
adopting
sure that many
agree with me on
lawyers in this country would
a
this point) that legal science, if it be
science at all, must necessar
background

The task
ily be "formal" and "neutral," at any rate in its method.
nor to propose
of the scientist is not to approve or to disapprove,
recon
an intelligible
an ideal, but to explain,
and to provide
of

struction

given

of

slice

human

In Herbert

experience.

Hart's

of legal concepts
is an
"the analysis or study of meanings
no
from
to
in
be
way
distinguished
(though
important
study
hostile to) historical
sociological
inquiries, and the crit
inquiries,

words,

ical

appraisal

etc."

tions,
set

out

X1

of

This

to pursue,

successful.

law

in

terms

of

morals,

is the aim that Continental

and

you

must

admit

in its most

that

recent

social

aims,

func

Rechtswissenschaft
it has

remark

proved

and most

up-to-date
Actually,
"Pure Theory of Law"?Continental
of Kelsen's
legal
in achieving
that supreme
tour de force
science has succeeded
to quote Hart again, is the crown of the positivist method:
which,
and to show "that
to construe the legal order as a coherent whole,
ably
form?that

a legal system is a 'closed logical system' in which correct decisions

can be deduced from predetermined
legal rules by logical means
con
like
to
I
would
alone."12
point out that, thus
Incidentally,
an
seems
ideal ground
to provide
ceived, positivist
legal science
10
1954

The
Province
J. Austin,
ed.),
p. 184.
11
The Concept
H. L. A. Hart,
12
Ibid.,
p. 253.

of

Jurisprudence

of Law

(Oxford,

Determined
1961),

p.

(London
253.

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LEGALITY AND

695

LEGITIMACY

interesting recent ventures in legal theory : the

uses
of logic in law, or, to call it with
its per
of
the
exploration
as
tinent name, of the nature of deontic
Mr.
Anderson
If,
logic.
puts it, those who engage in it do not propose to offer support for
to
any particular
system, but "to test its internal consistency,
for one of the more

and to isolate
verify its logical adequacy to its declared purpose,
on which
it rests" 13?I confess that
and clarify the assumptions
I cannot see how their premiss and aims substantially
differ from
the "ethical neutrality"
of the positivist.
and more
substantial
also another
But there is, I believe,
for the adherence of Continental
lawyers to the tenets
justification
reasons
for their attitude were
The underlying
of positivism.
held at Bel
into full light during an amicable discussion
brought
Foun
two
the
Rockefeller
the
under
of
ago,
years
lagio
auspices
old and young, from
dation, by a small party of legal philosophers,
was to
The purpose of the meeting
both Europe and America.
assess the basic features of legal positivism.
It was only on the
of the conference
that the English
and American
causes
to them the
of
seemed
what
discovered
the
participants
brand of posi
obdurate adherence of the Italians to the Kelsenian
from the
I would
like to quote a significant
tivism.
passage
Professors
Samuel
which
the
discussions
of
excellent
summary
for the Journal of Legal
and Richard Falk have written
Shuman
closing

Education.

days

"The

Kelsenian

abstractness,"

they

write,

"smoke

a strong commit
[on the part of the Italian participants]
common
to certain
ment
Broadly
positions.
socio-political
is liberal-democratic,
of these positions
the character
speaking,
between Church and
especially in regard to the proper connection
State. . . . Especially did it become evident that in the background
was a desire to strengthen
the legal
Italian presentations
of many
either
from
the
Catholic
interference
order against
Church,
or
its
interference
through
indirectly
directly
by institutional
a
provides
powerful
advocacy of natural law. Kelsenian positivism
the autonomy
of the
to establish
in a neutral manner
instrument
screened

13

A. R. Anderson,
Mr. Anderson
Significantly,
to Mathematical
Logic.

and Roles,"
Norms,
"Logic,
these words
from
borrows

in Ratio.
forthcoming
Introduction
Church's

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696

ALEXANDER
order.

P. D'ENTR?VES

The

of discretion
to introduce
external
narrowing
into the legal process
said
to have
also
[was]
had a beneficial
Fascist
the
impact upon judicial practice during
to
the
from
Government
resist
the
period, helping
pressure
judges
to distort the pattern of decision.
it [was] considered
Similarly,
a
the
to
Italians
be
muzzle
of
liberal
effects
upon reactionary
by
to move
discretion
the law in a
judges who would use a widened

legal
moral

considerations

direction.
One learnfed] in this way that wide differ
regressive
ences in legal theory may rest upon a shared and rational pursuit
of similar values;
'an
hence, one befcame] chary about criticizing
a
to
approach'
legal philosophy without 14 familiarity with the social
situation within which
it flourishes."
I have dwelt at length on the character and implications
of
to law, in order to account
the Continental
for and
approach
concern for legality rather
explain the reasons of the Continental
than for legitimacy.
It would appear that in countries where there
are wide
radical contrasts
of interests,
ideological
discrepancies,
on basic values, the issue of legitimacy
and little or no agreement
or explained away
is bound to be put, at it were, within brackets,
as a
to
the
of
by paying
lip-service
principle
popular
sovereignty
kind of deus ex machina.
Ethical neutrality
the
provides
lawyer
with the ivory tower where he can stand aloof from the turmoil of
of law, is the polar star that
the certainty
Legality,
politics.
claims
enables him to steer a safe course amid the widely conflicting
me
now
that
of opposing
I
Let
consider
the
say
ideologies.
price
paid for such life-saving devices too high, and one tbat has proved to
The formal approach
to the law is
in the end self-defeating.
reason why
the Continental
idea of legality
is something
different from the Anglo-American
notion of the rule
intrinsically
of law.
It is also the reason why
it has not proved to be a suf

be

the

of
guarantee
cannot
One

ficient
notion.

the values

which

you associate with

reminded here of the fate

that
that

help being
in the years
befell the great German doctrine of the Rechtsstaat
that preceded the advent of Nazism.
That doctrine had been care
after generation
of
fully and even lovingly tended by generation
14

R.

Positivism,"

A.

Falk
in

and

14 Journal

S.

I. Shuman,
of Legal

"The

Education,

Bellagio
No.
2,

Conference
1961.

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on

Legal

LEGALITY AND

697

LEGITIMACY

It spread from its native

land to different
parts of
In my young
successful
in Italy.
and was particularly
days, it was the official doctrine of our law schools, and I have no
doubt that those who expounded
it were sincerely convinced of its
scholars.

Europe,

inseparable links with the political ideals of liberty and democracy.

But under the influence of the positivist
concept of law, the doc
was gradually
If
trine of the Rechtsstaat
and irreparably altered.
law is nothing
else than the formal structure
of power,
that
social
formal structure is present in any State, whatever
political,
or moral aims are embodied
in the legal system:
every State is, by
a Rechtsstaat.
If in the name of neutrality
the lawyer
definition,
must abstain from passing judgment on the content of the law, if
then all that mat
its formal correctness:
his only concern is with
ters to him

is that the legal order should be preserved,

that formal
be
should
procedures
Tocqueville's
respected.
prophecy was ful
From the second Napoleon
to Mussolini
and
filled many
times.
Hitler the appearance of legality was maintained
in the setting up
of plebiscitar?an
dictatorships.
But if on one hand the myth of legality could provide the basis
for the subversion
of the old liberal and democratic
order, the
on the other hand was itself
notion of legitimacy
deeply affected
and
the
the
method.
by
positivist
approach
positivist
Legitimacy
was made to depend ultimately
solely on a question of effectiveness.
In the words of one of the greatest
Italian scholars of the period,
a
order
is
in terms:
"an illegitimate
contradiction
its exist
legal
ence and its legitimacy
are the same thing."
Santi Romano, who
not
wrote
these lines, was an adept of the Theorie de l'Institution
of the Reine Rechtslehre.15
to

that

Yet his conclusion

The

of Kelsen's.

of

is strikingly
similar
means
to
legitimacy"

"principle
the "validity
is deter
(of a given system of norms)
to
order
which
and
mined
that 'they
only by the
they belong,"
remain valid as long as they have not been invalidated
in the way
as is the case
in which
the legal order itself determines."
When,
with a successful revolution,
that
"the total legal order, of which
that

Kelsen

is an integral

norm

15
1946),

S. Romano,
192-193.

part, has

Corso

di diritto

lost its efficacy,"

costituzionale

this only

gen?rale

(Milan,

pp.

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indicates

2nd

ed.,

698

ALEXANDER

P. D'ENTR?VES

that a new legitimacy has set in, in so far as "the actual behaviour
of individuals
is [now] interpreted as legal or illegal . . . according
to this new order."
to Kelsen,
of
"the principle
Thus, according
16
is
restricted
the
of
effectiveness."
legitimacy
by
principle
Now it would
be easy indeed?and
it has been done many
times?to
level at such interpretations
of legality and legitimacy
the accusation of being nothing
else than an elaborate form of jus
tification of the fait accompli,
and that they end by making
force,
not justice, the last resort of legal as well as of political theory. But
and I think I know
too the answer
well,
positivists
to
would
offer
this
of
criticism.
To them, the
kind
they
a
a
of
is
of
moral
rather than a
value,
problem
justice
problem
not
do
its
relevance:
legal problem.
deny
They
they simply rele
it
the
outside
realm
and
the
the
of
gate
competence
lawyer.
Many
of my positivist
friends are men of high moral convictions.
There
I know my

which

can be no doubt of their being?as

the phrase now goes?ethically
as well as politically
"committed."
Yet they obstinately
cling to
I have described,
the views which
and deem it a token of intel
to profess them.
lectual honesty
They will repeat with Austin that
"the existence of law is one thing; its merit or demerit another."
The question of the validity of law is to them a different question
that of its moral
Hart puts their case
obligatoriness.
when he asks: in what way is it better, when
faced with
or
an
to
law
this
with
is not
say,
iniquitous State,
iniquitous
a
a
this is not
State, rather than, this is law, this is
State,
"The certification
too iniquitous
to be obeyed or respected?
as legally valid," Hart remarks,
"is not conclusive
something
1T
seems
to indicate
this
of obedience."
the question
Surely
from

well

very
an
law,
but
of
of

that
the legal order can be appraised other
there are standards by which
Could it not be the case that
than that of mere factual existence.
this is precisely what ismeant when one speaks of legitimacy ?
on this ground,
I believe
the positivists
Rather than attacking

that the question which must finally be asked is: does their view
to the notion of the rule of law, of govern
of legality correspond
16

H.

Kelsen,

(Cambridge,
17
Hart,

Mass.,
op.

Theory
of Law and
115-122.
1945-1948),
pp.
cit., p. 206.
General

State

(tr. Anders

Wedberg)

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AND LEGITIMACY
LEGALITY

699

in the
law, such at any rate as it is usually understood
and
is
to
under
be
tradition,
Anglo-American
gradually beginning
stood in most
civilized countries?
and I
This is a big question,
would
like to end with some personal impressions
rather than with
a clear and definite conclusion.
on
In his Digest of the discussions

ment

under

were held in Chicago in 1957, Mr. J. A. Jolo

that "as a logical postulate,
the rule of law has no
connection
with
of
fundamental
values and
necessary
any theory
can exist as well in an autocracy as in the most
liberal of demo
But he immediately
cracies."
goes on to say that "so formalistic
a view of the rule of law did not commend
itself to the participants
the rule of law which

wicz

concedes

in the Colloquium.
On the contrary,
it seemed to be generally
as
Rule
Law
in the West'
involved
'the
understood
that
of
agreed
more than the mere compliance
of the sovereign power in a State
with the rules of the positive law of that State.
There was, in fact,
a large measure
of agreement
that the rule of law has some positive
content

of being
in terms of fundamental
capable
expressed
18
Less than two years later, the International Commission
it held in New Delhi,
in the Congress
agreed to define
the rule of law as "the realization of the appropriate
for
conditions
of human dignity."
here
the development
is
the
Clearly,
emphasis
on the content of the law, on the purpose of the legal system.
The

values."
of Jurists,

of
request for legality is no longer one for the formal correctness
the particular rules or of the single decisions alone.
It is a request
to the values that
for the conformity
of these rules and decisions
are posited as necessary
for the existence of a free society.1' We
a touchstone which
are provided with
enables us to evaluate the
"legal quality" of law, the substantive
aspect of legality. We are,
with
in fact, identifying
legality
legitimacy once again, though in
a manner
to that of the positivist.
that is exactly opposite
The
as
we
ended
have
either
had
seen,
up by
reducing legit
positivists,
imacy
18

to a mere

J. A.

question

of fact, or transferring

the Discussion,
Chicago
in the West"
1957),
(Sept.
Facult?
de Droit
t. IX, 1959.
d'Istanbul,
19
"The Rule
as a Supra-National
N. S. Marsh,
of Law
in Jurisprudence,
ed. by. A. G. Guest
Oxford
Essays
(Oxford,
245.
"The Rule

Jolowicz,
Digest
of Law as understood

of

of

the appraisal

Colloquium
in Annales

Concept,"
1961),
pp.

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on
de

la
in

240

700

ALEXANDER

P. D'ENTR?VES

I am not
of law to a different plane altogether.
the obligatoriness
sure that we are not faced now with a reduction of legitimacy
to
a

of natural

question

or natural

law

rights,

or

at

any

rate

to a ques

I would
this paper with a few
tion of justice.
like to conclude
remarks about the conditions which alone seem to me to make that
reduction possible.
seems to me to be that there
The first and essential condition
should be a general agreement
in a given society about basic values.
I have already pointed
out the reasons why,
in societies where
course
there is no such agreement,
the safest
to the lawyer may
seem that of entrenching
of
himself
behind
the stronghold
As Tocqueville
legality.
pointed out, there may be good reasons
for him to prize order more than liberty; there certainly are when
is at hand of the subversion of that order by deliberate
the menace
The pre-condition
for the rule of law is the
enemies of freedom.
existence of a free society, one in which opposition
and dissent do
not challenge
the rules of the game, but accept them as beneficial
This, I need hardly add, seems to me
and in the U.S.A.;
I am not sure that

and necessary.
case in Britain
other

several

to be the
it is so in

societies.

contemporary

is that we abandon or at least modify

second condition
of law as the expression
that notion
of a sovereign will which
underlies
's case and which,
I am afraid, is deeply
the positivist
in
the
of
who
reared in the Roman
those
have
been
mind
ingrained
The

tradition.

"Law,"

Justice

Frankfurter

"is

wrote,

not

of

code

a litany of prohibitions
and restrictions.
It is
fettering restraints,
an enveloping
and permeating
of
habituation
behavior,
reflecting
the counsels of reason on the part of those entrusted with power
in reconciling
the pressure of conflicting
interests.
Once we con
'rule of law' as embracing
the whole
on which
is
conducted
government

of the

ceive

range of pre
and not as a

suppositions
technical doctrine
has

of judicial authority,
the relevant question
is not
is
but
it
and
achieved,
systematically
conscientiously

it been
.

pursued.

reason
20

. What

and fair dealing

F.

Government

Frankfurter,
under
Law

matters

most

are bred

Opening
(Cambridge,

is whether

in the bones

address
Mass.,

for

the
1956),

the

standards

of the people."
Harvard
p.

Conference

228.

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20

of

on

LEGALITY AND

LEGITIMACY

701

am very fond of
quoting this passage as the best summary I know
of the American
attitude toward law, as well as of the essential
of American
contribution
realism to legal theory.
Please do not
take this to imply that I accept all the tenets of realism, nor that I
think that they would be viable in Europe.
I firmly believe that
on several points our two traditions
could profit from a mutual
for one

not easily renounce

the
thing I would
that legal science must,
and cannot but be, ethi
All I want to say is that once you conceive of law,
cally neutral.
not in the Continental
fashion as an abstract set of rules, but as a
and purposeful process,
continuous
the whole question of the rule
of law, of legality and legitimacy,
is bound to appear in a new
one
a
and
in
from that in which
different
it appears
light,
certainly
and

encounter,
Continental

view

to us in Europe.
Some isolated but authoritative
voices, I know,
the
heard
been
also
here
in
the
U.S.A.,
recently
stressing
as
as
in
of
"neutral
in
well
decision
necessity
principles"
judicial
Some
the
caveats
of
of
legal argumentation.21
legal positivism

have

may
and

serve

well
to

so it appears
by

an

of rules,

'principle'
words,

behavior,"
it lies,

law

does

decision

"the element

people.

to me?that
to

extremes

certain

of

in realism.

rationalism

out in replying

a Court's

furter's

correct
some

approach

pointed

calls

to

introduce

as

and

not,

or

'reason'."

on

"an

enveloping

rest

of what

It rests,
and

point

approach
is?or

out

ruled

has

Rostow

the "legitimacy"

Wechsler,
cannot,

of precedent,
22

as Dean

since,

yours,

to Professor

the

is necessarily

rigid neutrality
such

realist

the
But

with

you

of
on

only

[Professor Wechsler]

I guess,
permeating

in Justice

Frank
of

habituation

in the bones" both of your Courts and of your

will therefore never consist in legality alone;
Legitimacy

rather,

"bred
in

the

constans

et

perpetua

voluntas

of making

legal

of legitimacy.
ity an adequate instrument
I fear, to make my whole
I have said enough,
self
argument
I
is
If
have
collected
sufficient
correct,
my interpretation
defeating.
to explain why my whole
evidence
about legality and
question
21
"Toward
Neutral
H. Wechsler,
of Constitutional
Law"
Principles
at the Harvard
0.
Holmes
Lecture
Law School,
in Principles,
W.
1959),
(The
and Fundamental
Politics
Law
Mass.,
1961).
(Cambridge,
22 E.
"American
V. Rostow,
in The
Pre
Realism",
Legal
Sovereign
1962),
(New Haven,
pp. 28 ff.
rogative

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702

ALEXANDER

P. D'ENTR?VES

or
is very
to some, meaningless
likely to seem,
some
me
at
I
that
have
Let
least
may
exposed
pointless.
hope
reasons for understanding
why it is not so with us, and why it is
legitimacy

bound
much

to
more

so

remain,
than

long

merely

at

any

academic

as

rate

present

conditions

endure,

question.

University

of Turin;

Yale University,

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