LEGITIMACY CRITERIA FOR LEGAL SYSTEMS

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Abstract:

Legitimacy, as the justified or justifiable authority to govern, is a universally recognized concept. However, there are deep jurisprudential, political and moral differences as to how it is constituted, resulting in separate schools of thought on the question of sufficient conditions for legitimacy. This article takes the novel approach of focusing instead on necessary conditions for legitimacy. This proves to be a powerful approach. Relying only on broadly accepted general principles, the article establishes three important necessary conditions for the legitimacy of a legal system, whether international or domestic. These are the legitimacy criteria of the title. These criteria concern the role of the legal system within the society as a whole. They impose on the legal system the responsibility for forming its own worldview, for negotiating its role within the society, and for assuring the integrity of its own processes. These responsibilities concern the legal system as a distinct institution within the socio-political order, and do not permit it to be aloof from that order. The last of them has important consequences for the construction of evidence within a legal system and for the relation of the legal system to other societal institutions. The analysis suggests comparison with, among others, H. L. A. Hart, J├╝rgen Habermas, the proponents of systems theory, and the Yale policy-science school. The article discusses its differences from each of these thinkers.
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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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