Citation for the original published chapter: Denskus, T., Schrader, L. (2010)
The debate on NGOs’ legitimacy: What can we learn from the classics?
In: Steffek, J. & Hahn, K. (ed.), Evaluating Transnational NGOs: Legitimacy,
Accountability, Representation (pp. 29-54). London: Palgrave Macmillan
N.B. When citing this work, cite the original published chapter.
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Lutz Schrader/Tobias Denskus
The debate on NGOs’ legitimacy. What can we learn from the classics? 1. Preliminary remarks
Economic globalisation still determines the current constitution of the world. How the ‘global community’ will be structured politically, i.e. normatively, institutionally and judicially, is still a highly contested debate. Rather than following a prefabricated blueprint the future political arrangement of globalisation will be the result of debates and altercations in which not necessarily the most powerful actors alone will be successful, but those with the most convincing arguments and concepts. It seems almost certain that any global order that will count as legitimate, has to comply with democratic principles. In the political struggles of the past decades and centuries democracy has established itself as the last ‘great political
narrative’ that has been able to convey meaning and identity across nations and continents. But what marks a democratic modus of legitimate will-formation and decision-making under the conditions of trans-boundary and global governance and problem-solving? To answer these kind of key questions at the crossroads of social and political developments, we are used to consult the ‘classics’ of political thought. The reflection of modern societies in the mirror of the theories of the ‘Meisterdenker’ makes it possible to tackle problems and their possible solutions within the horizons of the theoretically conceivable and normatively acceptable. However, the classics would not count as such, if their texts, which have been explored to the last footnote, would not disclose undiscovered solutions and perspectives in the light of new questions.
Thus the following chapter will critically revisit some of the most influential theories of legitimacy which, although they approach the subject matter from very different meta-theoretical, normative and disciplinary perspectives, are nonetheless complimentary:
- the empirical legitimisation theory of the understanding or interpretive sociology of Max Weber,
- the functional legitimisation concept of the sociological systemic theory of Niklas Luhmann,
- the normative communication-theoretical legitimisation theory of Jürgen Habermas, - the legitimisation theory of Michel Foucault, developed by means of historical- and
political-philosophical discourse theory.
Their theories span the entire era from the beginning of modernity until the present day. They stand for different changes of paradigm in political-societal organisation that repeatedly and profoundly changed the conditions of political domination and its legitimisation since the second half of the 19th century: from the pre-modern to the modern bureaucratic state (Weber), from hierarchical to the increasingly horizontal societal governance (Luhmann), from the territorially constituted state to communicatively mediated transnational political processes (Habermas) as well as from the hierarchical state to a highly fragmented form of domination and governance extended even into the individual (Foucault).
The works of the four authors are only evaluated under the aspect of their explanatory power in regard to the basis and sources of the claim for validity of civil society actors in the trans-boundary and global political processes. For lack of space a portrayal and appraisal of the different philosophical and sociological conceptual designs and legitimisation theories will not take place. The examination of the individual approaches will be conducted along four questions: (1) Which social and political processes and structures can claim legitimacy? (2) What statements are made with regard to the bases of legitimacy of civil society actors? (3) How are the causes and driving forces of change of the foundations, methods and rules of legitimacy conceptualised? (4) What do the theories say about patterns and modes of construction of legitimacy outside of the national political system?
The objective is not to create a new, comprehensive theory. It is rather to try to comprehend a highly complex subject more fully by casting it from different perspectives. It would be a success if it were possible to place future research on legitimacy of civil society actors, which is generally content just to differentiate between input and output-legitimisation, onto a more substantial theoretical foundation.
Max Weber – civil society organisations as charismatic change agents
We owe the insight that it is impossible to ascertain the legitimacy of a system in accordance with an external normative measure to Max Weber. He stated that it ‘is guided exclusively by the factual existence of such a power of command’ (Weber, 1968, p.948). Domination is legitimate, if ‘the authority which is claimed by somebody is actually heeded to a socially relevant degree’ (ibid.). Prerequisite for this allegiance is that ‘legend of legitimacy’ (Lemke, 2001, p.80), that has its source in the ‘generally observable need of any power [...] to justify itself’ (Weber, 1968, p.953), is believed and internalised by the subjects to such a degree that they experience the authority as ‘natural’ (Weber, 1968, p.954). Therefore the test of political legitimacy occurs not according to ‘the truth of the philosopher, but the belief of the people’ (Schabert, 1986, p.102; quoted in Clark, 2003, p.80).
According to Weber, the legitimacy of political domination in modern civil societies mostly depends on the belief of citizens in the rationality of an order, constituted by agreed or imposed rational rules of positive law (Weber, 1968, p.954). This empirical belief in
legitimacy is sustained on the one side by the ‘chances of gratification of the interests of the majority of society’ and on the other by the ‘extent of willingly endorsing participation of the populace, which allows for a legally constituted system of authority’ (Heidorn, 1982, p.49). The belief in the legitimacy of rational and legal domination is additionally supported by traditional and charismatic sources and assets of legitimacy. Weber’s analysis shows that several conceptions of order and legitimacy always coexist, overlap and complement each other, whilst also competing for validity (Weber, 1968, pp.33/34). Heidorn refers to the belief
in the legitimacy of a legal authority as a ‘resultant that is composed of the legitimising effects of traditional familiarisation, the charismatic prestige of political “leaders” and “statesmen” and the actual belief in legality’ (Heidorn, 1982, p.43).
Along with the three generally conversant sources of legitimacy, Weber introduces a little recognised fourth: the value-rational legitimisation.1 As examples he names natural law and protestant ethic.2 That makes it possible to assign a congruent facility for substantiation of the legitimacy of an authority or activity to every determining reason of social action defined by Weber (instrumental-rational, affectual, traditional and value-rational) (Heidorn, 1982, p.42). Weber’s disregard of the dimension of values is grounded in his deep scepticism in regard of the development of capitalist society, for which he envisaged a normative ‘loss of soul’ and a ‘mechanised petrification’ (Weber, 1975, pp.188 et seq.). In the light of the dissolution and fragmentation of the socially binding value basis, he sees the tendency to attempt to guarantee the cohesion and the capacity for action in the political and economic sphere with an
invariable enforcement of the law and a drastic bureaucratisation. The ‘devaluation of all values’, therefore, unfailingly leads to the dominance of a new type of legitimacy: legality (Heidorn, 1982, p. 40). Tradition, natural law and Christian ethics are replaced by the allegedly formal, self-perpetuating logic of the law as a value-rational foundation of legitimacy. The rationale of function and value are combined.
A characteristic feature of Weber’s theory of authority and legitimacy is his distinctive ambivalence towards the modern bureaucratic authority. On one side, he believes its enforcement to be inescapable; on the other he faces this perspective with unmistakable reluctance. Consequently, he looks for ways and means to evade the general levelling of
1 ‘The actors may ascribe legitimacy to a social order by virtue of [...] value-rational faith: valid is that which
has been deduced as an absolute’ (Weber, 1968, p.36).
2 Lemke observes with a view to the belief in the legitimacy of judicial rule, that people do not adhere to laws
simply because ‘they were generated according to formally correct procedure. It takes, more than that, a fundamental “belief” (for example in “ideologies” such as parliamentarianism, constitutional legality or pluralism)’ (2001, p.93, n.3).
society according to the imperatives of an ever-present instrumental rationality. As a counterpoint to the widely perceived state and elite centred sociologist another Weber appears. His criticism of the teleological inevitability of the ‘iron cage of bondage’ and his conceptual consideration open an alternative line of view into the inner dynamics of the development of modern capitalist societies. Centring the reflection onto the relationship of citizen and state seems surprisingly normative for such a confirmed empiricist as Weber. It signalises a conceptual approach that reaches far beyond his time. The sketch of a theory of civil society exceeds both the liberal and the communitarian project (Kim, 2000, p.214). It understands civil society not as a quasi-natural pendant of an institutionally stabilised democratic state. In fact, a democratically guaranteed civil society, based on emancipated citizens, becomes the indispensable prerequisite to every form of national or transnational state authority being prone of bureaucratic exaggeration.
Some authors regard these critical reflections even as one of the central themes of Weber’s work (Hennis, 1996; Goldman, 1988; 1992; Strong, 1992). In their understanding, Weber poses the question if there is any possibility for the individual to avoid an existence as ‘cog in a machine’ and the retreat into a passive conformism (Kim, 2000, p.210). Under the massive pressure of legal and bureaucratic rationale to homogenise, Weber sees in the charismatic leader or group the only instance that is capable of facilitating ‘a completely new orientation of all attitudes and directions of action with a completely new orientation of all attitudes toward the different problems of the “world”’ (Weber, 1968, p.245). In the political sphere he assigns charismatic leaders the task of providing the political apparatus and bureaucracy with values and goals (Heidorn, 1982, p.59). In his view, leadership personalities possessed of charisma form an indispensable, even ‘revolutionary’ counterbalance and corrective to the bureaucratically settled ruling structures. Therefore, he does not understand charisma primarily as a god-given or natural gift, but as the expression of the willingness of the
individual to assert himself against the pressure of subordination and disciplination, and to set morally demanding goals for their own life and that of the group.3
It would be mistaken to read this conclusion as the expression of a pro-mythical, illiberal meander (Kim, 2000, p.197). In Weber’s line of thought, charisma and ‘individually differentiated conduct’ form the antipole to discipline as universal requirement of the economic and political rationalisation (Weber, 1968, p.1156). But behind that is not the intention to celebrate the free, resistant individual as such. His deliberations aim further. He ties the chances of survival of an active democracy to the opportunity for self-determination of a specific type of subject:
‘How is it at all possible to salvage any remnants of individual Bewegungsfreiheit [freedom of movement] in any sense? […] How is democracy even in this restricted sense to be at all possible?’ (Weber, 1994, pp.156 et seq., quoted in Kim, 2000, p.213) The social space in which this could be made possible – Weber hopes – is an ideal type of civil society. He became acquainted with its role model on his travels in the USA (1904). As opposed to the conventional and well-adjusted German societal culture, he experienced civil society as a ‘disciplinary and (trans)formative site in which certain moral traits and civic virtues are cultivated via collective emphasis on individual achievements and ethical qualities’ (Kim, 2000, p.208). In these voluntary associations the individual not only ‘seeks to maintain his own position by becoming a member of the social group’ (Weber, 1985, pp.10/11), the individual also adjourns to a social surrounding ‘that constantly probes and reinforces the ethical standard that individual members should apply to their everyday life’ (ibid., p.208). Civil society organisations are, in this manner of understanding, not only shelters in which discerning moral attitudes, bearings and convictions are conservable. In their organisational exclusivity and their normative particularism they can generate the capacity to defy the inclusive and universal routine of bureaucratic rule (ibid., p.199).
Weber does not explicitly comment on the legitimatory status of civil society associations. He does, however, leave no doubt that every power, every individual, every group – ‘every chance of life’ – has the need for self-justification and, for the price of self-determination, must be made credible vis-à-vis its social environment4 (Weber, 1968, p.491). To associations as a special form of ‘social order’ validity can be ‘attributed’ both by their members and their social environment. The four sources were already mentioned above:
‘a) tradition: valid is that which has always been; b) affectual, especially emotional, faith: valid is that which is newly revealed or exemplary; c) value-rational faith: valid is that which has been deduced as an absolute; d) positive enactment which is believed to be legal’ (Weber, 1968, p.36).
Obviously, with regard to civil society associations of the American type the value-rational faith prevails. The members commit themselves to an ‘ethical rigor(ism)’ (Weber, 1985, p.579) and a ‘wilfully chosen subjection to an autonomously chosen purpose’ (Kim, 2000, p.211). Associations effectually require to a much higher degree than state rule an ‘inner’ value-rational guarantee on the part of their members. The inner justification of the
associations is based on the actions of the members in accordance with the internal measures of value (Weber, 1975, pp.132; 191 et seq., quoted in Kim, 2000, p.210). Looking from the social environment legitimacy is attributed also primarily by virtue of the ‘ethical qualities’ of the organisation (Kim, 2007, Fn.41). Finally, when civil society organisations can rely on a convincing value-rational credibility and exemplary qualities – in short: on a strong group charisma – they have as representatives of ‘negatively privileged groups of human beings’ a good chance to contest the legitimatory ‘myth of the highly privileged’ (Weber, 1968, p.953).
4 Weber used the concept of legitimacy in contexts of life situations when he spoke, for example, of the need of
humans to ‘legitimise’ their own lifestyle and circumstance. He labelled this tendency as ‘a need for psychic comfort about the legitimacy’, for example for the justification of own happiness ‘whether this involves political success, superior economic status, bodily health, success in the game of love, or anything else’ (Weber, 1968, p.491).
Starting from the ubiquitous desire for self-justification of every social actor the
reconstruction of Weber’s theory reveals both the aspect of power and reciprocity of every kind of legitimatory arrangement. In the social interaction between different aspirants to power the party will prevail which achieves to assure validity and credibility for its ‘legitimatory myth’ and ‘principles of legitimisation’. This insight offers a multitude of conceptual toeholds to understand the processes of formation, crisis and change of legitimate domination and governance as they are found nowadays in trans-nationally constituted political processes. Nevertheless, Weber’s theory has also a blind spot. His concept of ideal types does not explain how legitimate political arrangements occur or disappear. It does not answer the question why some traditions are appropriate to bolster legitimacy and others not, why, in a specific historical constellation, only certain individuals rise to the role of
charismatic leader and why a specific system of values finds favour and approval, whereas others remain more or less unnoticed (Heidorn, 1982, p.50). To answer these questions, the socio-structural conditions and the cultural determinants, among others, must be examined more closely. This aspect of analysis and conceptualisation is noticeably disregarded in Weber’s characteristic preference of the dimension of actors.
Niklas Luhmann – civil society organisations as immune system of modern societies Niklas Luhmann directly connects to Weber. His interests lie in how the ‘binding power’ of the decisions of a few people in the political or judicial system spreads through the entire society (Luhmann, 1983, p.27). Because he believes that in highly complex modern societies, stability and legitimacy cannot be procured out of a ‘basic stock of rigid, commonly prevalent belief in legislature’, he shifts his focus to the structural- and procedural dimension. Variably structured proceedings of political and judicial decision-making (ibid., pp.252/253) take the place of older rationale of natural law or exchange based methods of consensus forming (ibid., p.30). Establishing legitimacy turns into a function of the political system. It has to ensure that ‘its decisions are persistently perceived as binding’ (ibid.). This takes place when the political and judicial system provides procedures, which are suitable to effectively
restructure the social expectations of the subjects in relation to authority and thereby
transforms ‘variability into stability’ (ibid., p.252; Schliesky, 2004, p.157). Incrementally, a social climate is formed which institutionalises acceptance of self-evident binding decisions (Luhmann, 1983, p.34). However, it is prerequisite that all participants must be able to act on the assumption of a principally ‘fair proceeding, not predetermined by the use of power’, in which there is the ‘prospect of solving controversies by reasonable consensus of all
concerned’ (Luhmann, 2000, pp.124/125).
The gap between system and individual is closed by the concept of procedural role. As actors in intra-system procedures, individuals become agents of the function- and communication requirements of the respective sub-system. Everybody, whether as professional decision-maker or subject to decision, is forced into a certain rationale of behaviour. For them the participation in the communicative process is only possible upon adoption of the required role. Otherwise – and here, the power of procedure appears – the former would lose their profession or at least their reputation and the latter would fail to achieve their goal or even be excluded from proceedings. But the respective role also protects the participants against possible consequences of their role behaviour from other systems and their accordant roles in it (Luhmann, 1983, p.48).6 If everything runs according to procedure, even outsiders have to accept the independent legality of the procedure and its results. Participants can only be reproached if they did not comply with the stipulations of the respective social procedure. Therefore, ‘the relative autonomy of the procedure on the level of role and behaviour
contributes to the social generalisation of the result’ (ibid., p.49). Such generalisations are in turn a major condition for the legitimisation of decisions, ‘as the individual can only accept with the help of social support’ (ibid.). In this perspective, legitimacy turns to be a contingent, only empirically detectable social fact, which is reproduced respectively within every sub-system and in the communication between the different sub-sub-systems.
6 An honorary juryman, for example, may not be held responsible for a court ruling he supported by an employer
Luhmann’s narrowly defined production of legitimacy as ‘genuine political substance (power and legality)’ disregards the developments of the political system during the 1970s (Lange, 2003, p.140). As Luhman (2000) himself describes, the communication between ‘politics’ and ‘judiciary’ and the other sub-systems in the increasingly horizontal governance of highly complex Western communities runs no longer hierarchically, but reciprocally and
horizontally. The different sub-systems are substantially involved in the weakening or strengthening of the legitimacy of the whole societal system by more or less optimised operations (Heidorn, 1982, p.106). Here, a discrepancy between the legitimisation theory of the earlier and the societal theory of the later Luhmann emerges. The ideal form of equally communicating societal sub-systems postulated in the theory of society is depicted by the ‘real type of pure legitimacy of procedure’ (Lange, 2003, p.140) as a kind of one-way road of communication through the procedure of vote, legislature and jurisdiction. It is only a ‘halved theory of legitimacy’ (ibid., p.139). To complement this ‘self-legitimisation of politics’, a ‘counter-current of securing legitimacy’ has developed. The ‘unofficial circuit of power’ builds ‘on the direct influence of the organised public on the state administration’ (ibid.). Even established proceedings are changed in to the interplay of the two power circuits, and new procedures with more open role definitions emerge. Non-state actors change from the side of passive public and subjects to decision-making to that of protesters, experts and co-deciders.
Luhmann was made aware of his theory’s shortcomings by the extra-parliamentary opposition of the student movement, which reached its peak just in the year of the first edition of his book ‘Legitimation durch Verfahren’. The public was no longer willing to be limited to the role of uncritical subject to decisions, which only ‘condones the institutional process of political-judicial decision-making’ (ibid, p.138):
‘The reason for this protest was precisely the non-consideration and marginalisation of the political beliefs of the students through the structural specifications and material decisions in the factual proceedings of the constitutional state. [...] The foreshortening of
communication of political power to the traditional proceedings of the “official” political system obviously led to the underestimation, if not even to the denial of that political power which can be communicated outside of the political system’ (ibid., p.397).
The mature Luhmann has repaired this weak point in his theory through the re-evaluation of social movements and the introduction of the centre-periphery differentiation of the political system (Luhmann, 1996, p.200). The function of a quasi system-immanent corrective is ascribed to protest movements as parts of the outer periphery of the political system. They trigger learning processes and contribute in immunising the highly functionally differentiated societies against ‘congealing in entrenched, but no longer environmentally adequate patterns of behaviour’7 (Luhmann, 1984, p.507). As sub-systems only observe their environment from a certain point of view, problems that do not fall into their scope of responsibility are not perceived by them8 (Hellmann, 1996, p.23). Thanks to their capacity of system-wide observation and reflection, protest movements can compensate deficits of regulation of modern societies ‘that do not find regard elsewhere’ (Luhmann, 1991, p.153). When the superior measurement for the legitimacy of a social system in parts and as a whole is the conservation of its operational and learning capacity than social movements can claim to be a part of the legitimacy generating mechanism.
The emphasis of the systemic dimension in Luhmann’s work goes hand in hand with the disregard for the agency and the normative dimension. Individual and collective actors are only regarded when they, like the new social movements, make an unmistakable appearance on the societal stage. Even if to these new actors is simply assigned the quality of social systems, the hole in Luhmann’s theory is not so easily to patch. Especially in times of crisis
7 The system immunises itself ‘not against the ”no”, but with the help of the “no”, it protects itself not against
changes, but with the help of changes against torpor in entrenched, but no longer environmentally adequate patterns of behaviour. The immune system does not protect the structure, but the autopoiesis, the enclosed self-production of the system.’ (Luhmann, 1984, p.507)
8 ‘Science itself can only see something in the context of its own research programs, in the light of its own
spotlights, and it is futile to induce it to exceed its own competence [...] For politics, therefore, a rather negative rule of confinement is resultant: that it should avoid making decisions in matters where there is the risk that science would know better’ (Luhmann, 1996, p.173).
and change, the neglect of actors and the normative emptying of political legitimacy turn out to be a problem difficult to solve within the framework of system theory. The systemic approach lefts open how the system as a whole – apart from a mostly trial-and-error
procedure of information selection – can obtain balance and cohesion. Where, in Luhmann’s theory, can the motivation of system change be found? Who determines, and with what arguments, whether procedures with their well-rehearsed distribution of roles are still up to date or, respectively, when the time has come for new procedures with different role
descriptions? The disregard for actors with their ideas, convictions and capacities to act lets disappear the driving force of social change off the theoretical radar of the researcher (Reese-Schäfer, 1999, p.94).
Jürgen Habermas – civil society organisations as representatives of the public in the ‘post-national constellation’
In the famous controversy with Luhmann around the legitimacy and legitimability of modern democratic and capitalistic states, Jürgen Habermas’ design of a ‘material democracy‘ (Habermas, 1973, p.55) ties the legitimacy of the modern state to the institutionalised guarantee of a democratic discourse, in which all citizens must be able to participate on an even standing. He follows the tradition of the enlightenment of Rousseau and Kant, who had the intention of founding a ‘formal principle of reason’, through which ‘conditions and procedures of mutual consent themselves receive legitimising power’ (Mittelstraß, 1995, p.563). For Habermas the process of decision-making turns into the crucial criterion of
democracy. While, for Luhmann, democracy and legitimacy arise quasi behind the back of the individuals as a result of successful communication between the sub-systems of a society, Habermas ties the democratic quality of procedure down to the free and fair participation of all affected by the subject and the consequences of the deliberation. More than that: the discourse constituted in such a way becomes the means to determine what can count as rational in a society. The rationality and therefore the legitimacy of decisions are thereby fed
back to the possibility of criticism and justification of claims of validity within the discourse (Habermas, 1997, p.27).
With this universal design of democracy Habermas responds to the ‘loss of validity of
traditional cultural motivation for compliance and performance’ (Mandt, 1998, p.387) as well as to the governance crisis of the contemporary state. In the search for contemporary
legitimatory bases of political order, Habermas widens the conceptual circle of liberal theory, which exclusively recognises elections, referendums and parliaments as institutions producing legitimacy. In his view, there are no longer any good reasons to exclude citizens from the forming of political opinion and will, once the election has ended. Their participation mediated by public debate rather becomes the legitimising quality of the democratic procedure. The aim and goal of this process of public deliberation are the validation of common interest expressed without misrepresentation (Habermas, 1973). With the
formulation of an ambitious normative reference, Habermas addresses the political process in the wider sense, which he describes as ‘the interplay of a public sphere based in civil society with the opinion- and will-formation institutionalized in parliamentary bodies’ (Habermas, 1998, p.371). The idea of people’s sovereignty is reformulated discourse-theoretically and materialises through the possibility of the universal and non-repressive inclusion of all concerned and thereby guarantees the input of all positions into the political system. This is because ‘disregarded points of view are liable to deprive rendered decisions of legitimacy’ (Niesen, 2008, p.8, Fn.18; Forst, 2001).
Civil society functions as a filter of suggestions and as a generator of communicative power in influencing political decisions as well as to limit and control political power. The source of this communicative power is public communication mediated by civil society. It is sustained by a ‘far-flung network of sensors that react to the pressure of society-wide problems and stimulate influential opinions’ (Habermas, 1998, p.300). To the degree that decisions are discussed in the public, they undergo a process of discursive rationalisation:
‘Rationalization means more than mere legitimation but less than the constitution of power. The power available to the administration alters its aggregate condition as long as it remains tied in with a democratic opinion- and will-formation that does not just
monitor the exercise of political power ex post facto but more or less programs it as well’ (ibid.).
Therefore, legitimate decisions are generated within the active interplay between political system and the public or civil society. The boundaries between them are clearly and distinctly defined by Habermas. Only the political system can ‘act’ – ‘it is a subsystem specialized for collectively binding decisions’ (ibid.). In contrast, public opinion that ‘is worked up via democratic procedures into communicative power’ can not ‘rule of itself’. It ‘can only point the use of administrative power in specific directions’ (ibid.).
Although, according to Habermas, civil societies do not have any executive political power in the strictest sense, referring to Arato and Cohen (1992) he does grant them the possibility to simultaneously pursue ‘offensive and defensive’ goals in a form of ‘dual politics’, which can considerably influence conditions of and possibilities for governmental action, especially in times of crisis and upheaval. ‘Offensively’, they try to bring up issues relevant to the entire society, to define ways of approaching problems, to propose possible solutions, to supply new information, to interpret values differently, to mobilize good reasons and criticize bad ones. Such initiatives are intended to produce a broad shift in public opinion, to alter the parameters of organized political will-formation, and to exert pressure on parliaments, courts, and
administrations in favour of specific policies (Habermas, 1998, p.370). Conversely, they would operate ‘defensively, when they attempted to maintain existing structures of association and public influence, to generate sub-cultural publics and counter-institutions, to consolidate new collective identities, and to win new terrain in the form of expanded rights and reformed institutions’ (ibid.). The capacity of civil society organisations ‘to act’ is dependent on effective guarantees of constitutional institutions as well as the
obligingness of cultural traditions and social patterns, on the political culture of a populace used to freedom (Habermas, 1990, p.45).
Addressing the challenge of globalisation, Habermas has outlined a framework for the transfer of his originally state-centred design of democracy to the emerging ‘post-national
constellation’. As an ‘alternative to the forced cheerfulness of a “self-dismantling” neoliberal politics’ (Habermas, 2001, p.61), he considers a democratically designed multi-level system, which consists of ‘three arenas with three types of collective actors’: supranational or global organisations, continental regimes and nation states (Habermas, 2005, pp.334 et seq.,
emphasis in original). He counterbalances intergovernmental actors with transnational public and civil societies for the guarantee of democratic self-governance, to bring about a change of direction towards a ‘global domestic policy without a global government’ (Habermas, 2001, p.62). Transnational constituted parties, interest based associations, NGOs and civil
movements should create the normative and institutional conditions for the limitation of global commercial and communicative networks in the sense of ‘democratic self-control’ (ibid.) of society. In search for ‘functional equivalents’ for arrangements of democratic self-governance on the transnational and global level he formulates several entry points
(Habermas, 1998): (1) effective public administrations, (2) congruence of decision-making forums through the inclusion of potentially affected persons and regions, (3) efficiently working public and generally accessible deliberative processes of opinion- and will-formation, (4) social integration and common identity of all citizens through an inclusive democratic process9, as well as (5) the guarantee of social justice and political and judicial equality for all citizens of the state respectively of politically constituted communities. According to Habermas, in such a post-national democratic configuration – conceived as complementing ‘conventional procedures for decision-making and political representation’
9 ‘Thanks to its procedural properties, the democratic process has its own mechanisms for securing legitimacy; it
can, when necessary, fill the gaps that open in social integration, and can respond to the changed cultural composition of a population by generating a common political culture’ (Habermas, 2001, p.74).
(Habermas, 2001, p.111) – the theoretical requirements for legitimate democratic politics change as well. The conceptual ties ‘between democratic legitimacy and the familiar forms of state organization’ (ibid.) are loosened. The ‘constitutive differences between state and society’ are being eroded. Departing from these theoretical premises, it is possible to conceptualise the ‘change from hierarchical to horizontal, decentral or sectoral models of policy exchange’. The associative modus is becoming apparent as the complement to the traditional national structure of legitimate politics (see Cohen, 1996; Cohen and Sabel, 1997):
‘Supposedly weak forms of legitimation then appear in another light. For example, the institutionalized participation of non-governmental organizations in the deliberations of international negotiating systems would strengthen the legitimacy of the procedure insofar as mid-level transnational decision-making processes could then be rendered transparent for national public spheres and thus be reconnected with decision-making processes at the grassroots level’ (Habermas, 2001, p.111).
This opens a possible perspective of theorizing the democratisation of political structures and institutions on a global scale (Schmalz-Bruns, 2005, pp.93/94).
By widening Habermas’ approach to the analysis and evaluation of trans-boundary and global political processes, an immanent limitation of the concept of deliberative democracy becomes even more visible: adopting a Western understanding of rationality and democracy as
universal, incompatible rationalities and democratic modi are – at least implicitly – excluded as irrational and undemocratic. The discourse-ethical concept of democracy categorically fails in the evaluation of the legitimatory qualities of procedures and decisions which did not originate through deliberatory ways. Experience shows that more deliberation does not necessarily lead to more democracy and legitimacy, i.e. acceptance of the subjects of decisions (Jakobi, 2000). For reasons of its normative orientation, the approach does not possess the theoretical-analytical sensorium to appropriately capture and portray the empirical dimension of legitimacy. This includes for example non-cognitive aspects of legitimacy such
as charisma or the attribution of authority, for example through aesthetic properties, which are not explainable as the results of rational proceedings and agreements (Peters, 1994, p.53). Michel Foucault – civil society organisations as contact points in the network of governmentality
Given the specific strengths and shortcomings of the recapitulated theories, a conceptual framework is sought, which is suitable to combine their strengths and to overcome their blind spots. Such a concept needs to integrate the different aspects and dilemmas of theory
formation – actor and structure/system, empiricism and norm, contingency and universality – into a more coherent architecture. A promising framework to satisfy these needs is the
political theory of Michel Foucault. The starting point of his approach is the criticism of the dichotomy of individual and system, power and domination, democracy and dictatorship as well as the tendency towards generalising typically Western normative and institutional patterns. He aims to overcome the fixation of the analysis on the state and the political sphere in a narrow sense, which has ‘dragged on’ from Weber ‘to newer concepts of legitimisation theory (such Luhmann’s and Habermas’)’ (Heidorn, 1982, p.67). Foucault criticizes
especially a mostly ‘juridical and negative perception’ of power, which is expressed in terms like law, prohibition, freedom and sovereignty (Foucault, 1977, p.112). Further characteristics of the negative conception of power are – according to Foucault – the strict distinction
between the allowed and the forbidden as well as the Christian conditioning of subjectivation (Foucault, 1987a), through which individuals are integrated in relations ofpower and
dominance in order to ensure their compliance.
Foucault’s concept blurs the line between relations of power and state of dominance. Domination becomes a particular manifestation of power. In his definition, domination is a lastingasymmetrical exercise of power institutionalised by economic, political and military means. Hence, domination is characterised by blocked relations of power (Foucault, 1985; Lemke, 2001, p.89). Foucault does not only use power in the negative sense of coercion. It
can also manifest within the promotion and structuration of options of action and forms of subjectivation. In this view, ‘government’ changes from a clearly defined institutional place into society-wide spread ‘contact points’, where ‘the techniques of the self are integrated into structures of coercion or domination’ (Foucault, 1993, p.203):
‘The contact point, where individuals are driven by others is tied to the way they conduct themselves, is what we can call, I think, government’ (ibid.),
In that sense the process of governing people is a ‘reciprocal relation of productivity’, where power and domination are linked (Foucault, 1978, p.134). Thus, power and, respectively, domination are unthinkable without the ‘versatile equilibrium, between techniques which assure coercion and processes through which the self is constructed or modified by himself’ (Foucault, 1993, pp.203/204).6
For Foucault, the ‘techniques of the self’ and the corresponding ‘techniques of power and domination’ are dependent on culture. Through the change of perspective from a Western influenced normative and substantial understanding of power to a relational form of power7, Foucault designs a framework of analysis and interpretation suitable for generalisation, within which the alleged universality of Western model of democracy can be understood as singular form. To integrate this link between the inner and outer dimension of domination, he creates the term ‘governmentality’ (Foucault, 1991). Accordingly, government is a universal form which is filled depending on culture and mentality. Every action of governance claims rationality for its decisions and results. Thus rationalities are ‘historical practices, in whose context strategies of perception and evaluation are created’ (Lemke, 2001, p.88). They
constitute a ‘political-epistemological space’ – a ‘field of possibilities’ – which allows a range of different answers, reactions, manners of conduct et cetera (ibid.). The acceptability of
6 Foucault formulates this correlation as the two meanings of the word subject: ‘subject to someone else by
control and dependence, and tied to his own identity by a conscience or self-knowledge. Both meanings suggest a form of power which subjugates and makes subject to’ (Dreyfus and Rabinow, 1982, p.212).
7
The characteristic trait of power is that some people can claim more or less total control over other people – but never in an exhaustive or coercive way (Foucault, 1988, p.66).
claims of validity is dependent on the respectively prevailing rationalities, that is to say on the respective actual historical practices in whose context strategies of perception and evaluation are generated (ibid.).
Foucault, unlike Weber, is not taking the fact of acceptability for granted. He aims at revealing the ‘conditions of acceptability’ (Foucault, 1987b, p.254, quoted in Lemke, 2001, p.88). His interest lies in the conditions of the production of this ‘acceptance of legitimacy’ (Weber, 1988, p.470). Unlike Habermas he is not concerned with the question of relation of practices and (normative) rationality, its correspondence or non-correspondence in the sense of a ‘distortion of rationality’ (Lemke, 2001, p.88). It is also not his intention to describe, like Weber, a universal process of rationalisation, but to reconstruct specific rationalities and their historical transformation and mutual relation with regard to concrete subject matters.
Foucault’s ‘main problem’ is not whether practices follow the principles of rationality or not, but to find out which type of rationality they adopt (Foucault, 1988, p.58). Therefore the concept of rationality does not imply a normative valuation, but has above all ‘an instrumental and relative meaning’ (Foucault, 1994a, p.26).
In this view legitimacy is a characteristic of every relationship of power and domination in which the interplay of techniques of rule and power (‘government by others’) on one hand and techniques of the self (‘self-government’) on the other reproduce, transform and combine strategies of perception and evaluation in such a way that the area of tension between possibility and realisation is acceptable for all parties involved. Legitimacy in the sense of social validity of the origin, implementation, constitution, movement and outcome of relations of power and states of domination is no longer given when the parties involved do not accept the applied rationalities any longer, or even oppose them and express the will to not be ruled in such a way (Foucault, 1992, pp.54 et seq.). Those who succeed in procuring acceptance for the rationalities they claim against antagonistic rationalities, exercise power or domination respectively. Furthermore, they have to succeed in presenting these rationalities with the use
of adequate discourse-political strategies (‘politics of truth’) even in the face of conflicting claims as ‘true’ and make them acceptable for those concerned and involved time and again by reproduction and transformation. In this sense, legitimacy is a dynamic social construct. The multi-faceted concept of power and domination has important implications for the legitimacy of civil society organisations. Environmental, feminist and other initiatives have found a lot of inspiration and encouragement in Foucault’s work of ‘how relations of domination between women and men, and between different peoples, can be changed’
(Flyvbjerg, 1998, p.225). Starting from his ‘decentred understanding of power’ (ibid., p.214), Foucault does not bother asking how civil society organisations may participate in the
practices of governance, but which possibilities they have to analyse, criticise and control them. He is primarily interested in their chances to prevent ‘every abuse of power, whoever the author, whoever the victims’ (Miller, 1993, p.316). Civil society engagement must therefore primarily aim towards social change in general and the alteration of specific arrangements of dominance (Dean, 1994). Within this consistently micro-political and
bottom-up approach the societal and political legitimacy of civil society organisations accrues according to how and to what degree they succeed in eluding the co-optation by the
disciplination- and subjectivation-techniques of state and economic sphere. On their own part, they may contribute towards the limiting of dominance and the strengthening of freedom and democracy both within civil society and in terms of the whole society (Flyvbjerg, 1998, p.224). This is the reason why Foucault views the ‘state-distant’, ‘civil society’ or ‘informal’ concepts of authority and control, which are mainly based on consensual forms of will-forming, ‘rather as a transformation than an abolition of traditional forms of domination’ (Foucault, 2005, pp.722 et seq., quoted in Lemke, 2006, p.45). In this way, consensual forms of action and networks formed by relations of power can function so that they cause
On this theoretical background the liberal concept of parliamentary representation proves itself to be as inappropriate as Habermas’ ideal of a general consensus of those affected by decision-making. Both concepts stand for a state-centred top-down logic. They are not fit to be markers of differentiation between legitimate and illegitimate relations of power and states of domination. The dissolution of the dichotomy of state and individual in the Foucauldian concept creates space for the insight that the activity of governance covers all relations of the society: of self to self, self to others, between institutions and social communities. On all these levels the question of the quality of the (reciprocal) representation of individual and group interests is posed. The rule of measure in a concrete situation and context is just determined by whether individual or group experience a gain or loss of freedom and democracy through the affiliation with a greater societal body. Thus, a legitimatory dilemma emerges for civil society actors: They can either participate as a part of ‘the government’ in the (re)production of the legitimacy of dominance. Or they can gain their legitimacy from their engagement as a corrective and countervailing power to the political and economic arrangements and
instruments of domination. Civil society actors operate always within this field of tension between (co)dominance and independent volition. In the end, it is essential to alter the ways and means of governance and domination in a more democratic direction.
Conclusions
Adding up the findings of this journey through the very different, but nevertheless complementary theories on legitimacy of the four classical thinkers, important elements, characteristics and dimensions of the legitimacy of civil society actors and action can be deduced:
(1) The political dimension: The gestalt change of political domination from the more or less hierarchical national government to the horizontal, highly fragmented ‘trans-statehood’ of cross-boundary and global governance presents the question of legitimacy in a new light. To the extent to which the boundaries in cross-boundary political networks between ruling
positions and positions of power between state and non-state actors are blurring the ubiquitous need of every actor for context-dependent self-justification is strengthened. The particular distinction of legitimacy of state actors proves itself to be a time-contingent expression of primarily nationally and hierarchical constituted political systems. The insight into the common origins of all social and political legitimacy creates a basis for scrutinizing the genuine elements of legitimacy of civil society actors. It is suggested in a first approach to distinguish between ‘weak’ legitimacy of civil society actors and the ‘hard’ legitimacy of governmental institutions and their representatives. ‘Hard’ legitimacy derives primarily from the established political and legal norms, proceedings and institutions, as well as the
appropriate conduct of the political, administrative and judicial elites. Looking at the
institution-bound state legitimacy, the impression can still arise that their legitimacy is a fixed property of these institutions and their representatives. This perception is quickly dispelled by the example of civil society actors. They are a case in point, that legitimacy can only be granted and revoked within the relation of different actors: it is produced and transformed in a specific situation and context.
(2) The empirical dimension: To understand when actual, empirical recognition is gained by political leaders and institutions, Weber’s typology of legitimate domination is still
authoritative. In general, the approval of legitimacy on part of the subjects to political
decision-making occurs when these procedures and institutions act upon normative values and rules regarded as steadfast and binding and when the responsible actors behave accordingly. Additionally, institutions gain legitimacy when they obtain a traditional quality due to long-term successful practice and/or when they are represented, implemented and administered by leaders distinguished by charisma and prestige. The ‘ingredients’ of such a legitimising ‘form’ are always the same: consensus of value, judicial order, traditions, charismatic and exemplary persons and groups which are concurring within a more or less clearly defined constituency. This form is filled with actors from the different societal spheres: business, state and civil society. Connecting to Weber and Foucault, the specific source of legitimisation of civil
society actors consists of their capacity for self-management in accordance with the specific context and situation. Civil society activists and organisations can claim and expect
legitimacy to the extent that they are successful in formulating and pursuing own values, aims and goals vis-à-vis to the instrumental-rational logic of state and economy. Measure of this is their self-assertion as well as the pursuit of aims dedicated to individual and collective emancipation, social change and democracy. The guarantee of conditions for development and self-assertion of free autonomous personalities and actors becomes the prerequisite for legitimate democratic states and sustainably administered enterprises.
(3) The normative dimension: The concept of distinguished and conflicting normative rationalities that has been introduced by Weber and expanded by Foucault makes it possible to understand both the dependency of the social validity of specific political order upon the dominant political discourse and the dynamic of change of a given form of legitimacy. As a specific order of knowledge, the dominant discursive construction of rule structures and legitimises the techniques of domination, power and subjectivation which are for the most part regarded as normal and without alternative. The discovery of this connection poses the question, why does the belief in the legitimacy of a political rule – on the part of its subjects – appears in certain conditions, but not in others: in short, why do different strategies of
legitimisation not catch on equally. What had seemed immovable and permanently binding proves to be the result of political altercations and negotiations – especially in times of historical crises and upheaval. The source of change of discursive dominant pattern emerges. Actors participating in a concrete context of governance come into focus as agents and inventors of distinguished, often clashing rationalities. In contention with the ‘politics of truth’ of governmental and economic institutions, civil society actors can by using their communicative power influence and avert the well-rehearsed communication circuitry of the general public. Consequently the ‘problem solving mode of the entire system’ can change step by step (Habermas, 1992, p.460). Under their pressure, with their aid and assistance, new patterns of legitimisation introduce themselves by their sequential manifestation and through
incremental affirmation. Finally, these patterns can become dominant norms and procedures. Once established as accepted standards and rules of political and economic governance, they unfurl their objectified validity as self-evident procedures of integration and exclusion. (4) The procedural dimension: Notwithstanding their different theoretical approaches, Habermas’ and Luhmann’s theories allow for the formulation of important criteria of the legitimacy of transnational and global political arrangements. Both try to find a new adequate mode of legitimation in a society characterised by deflation and fragmentation of social meanings and values. According to them the only salvation to ensure society-wide acceptance and recognition of processes and results of will-formation and decision-making lies in the procedural dimension. Habermas opts for the redemption of the prototypical idea of
democracy, whereby the subjects of legislation must understand themselves as its originators. Through participation they have the chance to emphasize relevant perspectives and
considerations and in this way facilitate the best rational decision as possible. In contrast, Luhmann sees the potential for stabilisation of social interaction primarily in the entelechy of political and judicial procedures. Because ‘recruitment- and programming decisions’ in the highly complex contexts of transnational and global governance cannot be legitimised by national vote and legislature anymore, the opening of political procedures and role
expectancies seems to be inevitable. When governments and international organisations are increasingly forced to admit non-state actors within transnational networks of power, the traditional distribution of influence and power between political procedure and its environment must shift. More and more, decision making is turned into a horizontally governed mutual process of negotiating and learning. Civil society actors exert immediate power both through the indirect influence exercised on rules of procedure and role
expectations and the direct contribution in decision finding.
(5) The (inter-)cultural dimension: Legitimating rationalities applied by political actors always have a cultural dimension. Cultural conditions structure the space of possibilities, in
which the instances of legitimisation defined by Weber – tradition, charisma, values and legislature – can produce their effect in concrete implementation. Within the so defined ‘political-epistemological realm’ certain strategies of legitimisation are allowed, supported and reinforced. Others are rejected and marginalised or even banned. Civil society actors, especially in trans-boundary and global contexts, are carriers and co-designers of their own cultures as well as mediators between different cultural and political rationalities. In
transnational and global processes of governance they have to meet a huge challenge with regard to their management of legitimacy. Actually, they have to manage the cultural difference between their home country and the country where they work. In concrete terms, this means to decide in which role to operate and which rationality to use in a project, e.g. in international development cooperation or peace processes. Two things need to be considered at the same time. On the one hand, strategies of legitimation and subjectivation encountered in the country of destination may not be judged unilaterally according to one’s own cultural and ethical criteria. On the other, the goal cannot consist of striving opportunistically for
legitimacy at any price. A preferable approach would be to determine on the background of one’s own normative criteria and convictions towards which actors, institutions and political-cultural milieus acceptance and recognition, i.e. legitimacy, are aspired. As a long-term rule, sustainable legitimacy in accordance with the own mandate is preferable over a short-term ‘just in time’-legitimacy. This task is so much the difficult because cultures under the
influence of trans-boundary communication, economic exchange and migration can no longer be clearly differentiated; instead hybrid constellations formed by the overlap and
amalgamation of different cultures prevail (Reckwitz, 2001, p.17).
(6) The systemic dimension: In any constellation of rule or power, the involved governmental, economic and civil society actors’ sources and requirements of legitimacy coexist in space and time. This is especially true for cross-boundary and global governance networks. The legitimatory principles and strategies of the actors can be strengthening, clashing or neutralise each other. For a certain period of time, they have the tendency to form a more or less
consistent legitimatory arrangement.8 Therefore, the democratic legitimisation of trans-boundary political processes requires productive normative and institutional mediation between the highly fragmented rationalities of actors involved (Habermas, 1998, pp.105 et seq.). Civil society actors contribute in diverse roles to this bargaining (for example
monitoring, supplying and ensuring transparency, offering expertise or representing especially marginalised group interests). Functioning networks form a relatively stable, reliable social context which enables the development of mutual trust (Luhmann, 1984, pp.179 et seqq.). Only on this basis, a shared identity and solidarity as well as institutional routines regarded as legitimate can arise (Habermas, 1998, pp.110 et seqq.), which in turn provide for the material and ‘symbolical safeguarding’ of trusty relationships (Luhmann, 1984, p.180). Especially civil society organisations depend on the leap of faith ensured and accumulated jointly with other actors in social networks, which may considerably extend their political weight and influence (ibid.). With the disposal of trust and social capital9 (Bourdieu, 1985, p.248), civil society actors can deploy power among others in form of ‘social control’ and ‘rule
enforcement’ (Portes, 1998, pp.9/10). At the same time, the existence of networks provides the social background for the legitimisation of this power.
8 Foucault defines the reciprocity of legitimising relations with his formula of ‘leading of leaders’ (1987, p.255).
With this seemingly paradoxical term, he wants to clarify that in democratic rule and power relations, leaders’ aspiring to legitimacy is dependent on the disposition of the legitimately led subjects and vice versa.
9 Bourdieu defines trust and social capital respectively as ‘the aggregate of the actual or potential resources
which are linked to possession of a durable network of more or less institutionalized relationships of mutual acquaintance or recognition’ (1985, p.248).
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