Thanks for a thoughtful, informative website. Just read Heart of Darkness and Blood River. Now getting up to date on Congo.

What is Electoral Legitimacy?

Legitimacy is a term much bruited about in discussions of electoral law and policy. Courts and commentators repeatedly profess their concern with electoral legitimacy. Occasionally questions are voiced about the legitimacy of the entire electoral process such as substantive due process as to the conduct of an election.

Although the concept of electoral legitimacy features prominently in constitutional legal debates, it rarely receives analysis. Those who appeal to electoral legitimacy frequently fail to explain what they mean or the criteria that they employ. Confusion often results — not only among readers and listeners but also, I believe, in the minds of those who write and speak about electoral legitimacy.

I have two ambitions. The first is to clarify what we characteristically mean when we talk about electoral legitimacy. In pursuit of this goal I shall draw a number of distinctions. Perhaps most important, I shall argue that the term electoral legitimacy invites appeal to three distinct kinds of criteria that in turn support these three concepts of electoral legitimacy: legal, sociological, and moral. When electoral legitimacy functions as a legal concept, legitimacy and illegitimacy are gauged by legal norms. As measured by sociological criteria, a claim of electoral authority is legitimate insofar as it is accepted as deserving of respect or obedience. A final set of criteria is moral. Pursuant to a moral concept, electoral legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law as an exemplar of normative conduct.

Distinguishing among legal, sociological, and moral legitimacy often yields an immediate and practical payoff. It comes in increased understanding of electoral debates, enhanced precision of thought, and the potential for clearer expression. When we can identify a particular electoral legitimacy claim as legal, sociological, or moral, its meaning will typically become plain. We will also be better situated to consider the standards for establishing benchmarks in an assessment of an electoral process.

My second aim is to advance substantive understanding of the electoral process. When we examine electoral legitimacy with improved conceptual tools — with a sharpened awareness of what we mean by electoral legitimacy and why we care about it — striking conclusions emerge.

First, the legal legitimacy of an electoral process depends much more on its present sociological acceptance (and thus its sociological legitimacy) than upon the legality of its formal ratification. Other fundamental elements of the electoral process, including practices of interpretation, also owe their legitimacy to current sociological acceptance. By contrast, most ordinary electoral protocols derive their legitimacy from legal/convention norms established by or under a code of conduct.

Second, although an electoral process deserves to be recognized as morally legitimate, the nature and significance of its moral legitimacy are easily misunderstood. The electoral process is not perfect, nor has it ever possessed the unanimous consent of the governed. As a result, the electoral process qualifies as legitimate only under what I shall describe as “minimal” (rather than “ideal”) theories of moral legitimacy. The electoral process’s moral legitimacy, like that of elections of most nations, arises from the facts that it exists, that it is accepted as law, that it is reasonably (rather than completely) just, and that agreement to a better electoral process would be difficult if not impossible to achieve.

Finally, as should be evident already, the electoral process does not rest on a single rock of electoral legitimacy, as many appear to assume, but on sometimes shifting sands. Realistic discourse about electoral legitimacy must reckon with the snarled interconnections among the electoral legal process, its diverse sociological foundations, and the felt imperatives of practical exigency and moral right.

Monte McMurchy
UNMIL
Monrovia, Liberia

April 14, 2005