After posting this question earlier here, I have produced this paper for a seminar, but figured, this question is also relevant to MUNers, who e.g. represent delegations in the UNSC or NATO. Understanding legitimacy and legality is vital to many discussions - and given the many insecurities I have experiences over the last years, it is about time to clarify some concepts further. This one is in legality and legitimacy -are they the same? Or not?
Discussing two concepts as complex as legality or legitimacy will surely exceed the scope of the following essay, however, in this essay the two concepts will be shortly elaborated and then taken to underline the dilemma of their distinction with examples from recent policy debates. Furthermore, the concepts will be analyzed in conjunction to explore the relationship between legality and legitimacy.
First, the concept of legality is explored. The concepts by origin is referring to “the obligations imposed by the law” and therefore, is strongly linked to the rule of law, and in turn, that being safeguarded by the state. The rule of law thus distinguished what is legal and what is illegal. What is within these boundaries of legality depends on the construction of the rule of law of the state. As a construction by the state, legality is thus dependent and intertwined with the state – this means in practice, that the state defines what is legal and what is not.
The principle of legitimacy is even less clear than the concept of legality. As a social construct, the legitimacy of an act or person depends on the perception and standing rule of society. In more detail, legitimacy does not rest only on the rule of law as supported by the state, but also on the society’s perception of right and wrong. What is therefore right in the eye of the law might not be right in the eyes of society – popular cases being the death penalty or vigilantism. Many argue therefore, that legitimacy of an act thus supersedes its legality. An act has to be legal first and at best, should or even must also be legitimate. However, this is an idealist viewpoint barely viable in our complex world. In sum, for something being legal it has to comply with the law while it being legitimate means that is morally accepted. Both might support each other or cancel each other out though.
In the following, I will shortly elaborate on two critical dilemmas, which help to understand the distinction between legality and legitimacy further.
Dilemma 1 – The death penalty
The death penalty is a punishment instituted by the rule of law in some states, which punishes e.g. capital crimes such as brutal murder or rape by death. The application in terms of which crimes are punishable by death differ by state. What is legal, thus a crime punishable by death in Saudi Arabia is not legal in the USA and vice versa. What we can take away from this is again that legality is depending on the rule of law applied by the state. However, the discourse about the legitimacy of the death penalty in our post-modern states remains an issue of harsh debates. Since the evolution of human rights and their declaration in 1948, legitimacy as a guiding principle compared to legality took center stage. Our human rights, independent of the rule of law of our nation state, are supposed to supersede the legality of principles laid down in criminal law of states. One of those rights is the right to life, which is universal to all human beings. Thus the first dilemma shows how legality and legitimacy are ultimately connected but also contradictory. Legitimacy, or the moral values of society, can be enshrined in something like laws, such as the Human Rights Declaration, but ultimately, the legality still is dependent on the state. With that, legality of rules and laws within states may overturn legitimate claims, such as the abolishment of the death penalty.
Looking at this dilemma, we can say that not everything that is legal is automatically legitimate. But it can be legitimate and legal at the same time if the set of laws applied are built upon the morality.
Dilemma 2 – Military intervention for humanitarian reason
This is a dilemma at the heart of international policy making now, e.g. in the United Nations Security Council (UNSC). Here, the question whether a military intervention is the legitimate means to fight (humanitarian) crisis such as the Syrian war or the political conflict in Burundi. While a military intervention can be legalized in international legal terms, e.g. via a clear mandate given by a UNSC resolution, such interventions are often considered illegitimate as they fight violence with counter violence. On the one hand, it is argued that the intervention is legitimate as it has been legalized and in turn, also signifies that the international community takes responsibility up for human beings involved in the conflict. On the other hand, opponents put forward the fact that the international community can and should not legalize any military interventions as it hurts the rights of the states in questions and violates their territorial integrity, and ultimately, puts soldiers at risk, too. Again, we can see with this dilemma that certainly, while legalizing interventions is formally possible, there is strong arguments against doing so. Legitimacy here can be seen as a double-edged sword. On the one hand, it is legitimate to help peoples in distress, on the other; it is also legitimate to value the territorial integrity over that. Again, as seen above, the gap between the importance of the nation state and the prominence of the human life mark the boundaries between legitimacy and legality.
What can we take away from this short discussion with regard to the question asked in the beginning?
After elaborating about the dilemmas that we face when discussing legality and legitimacy it seems sound to say that they are certainly not the same, though strongly intertwined. Not everything that is legitimate is also legal – an intervention by the USA in Iraq might have had legitimate reasons, however, it was formally not legal. The death sentence for a brutal rape might be a legal sentence in some countries, but it is not legitimate when we for example, take the Universal Declaration of Human Rights as our benchmark. This leaves us with the mission to think carefully about legality and legitimacy and be aware of the fact that they are neither interchangeable, nor clear-cut opposites. The relationship between the two concepts remains a dilemma in itself and by that, requires each public policy analyst to rethink carefully, whether their policies are able to be both – legal and legitimate. And as in many cases, this will not be the case, the analyst needs to choose and also, argue for their choice. Thus, it is highly likely that we will continue to experience dilemmas as the ones described above in public policy making. Awareness about the concepts and their complexity nevertheless makes our choices more conscious and therefore, supports viable policymaking.
 Taken from the Merriam Webster Dictionary via http://www.merriam-webster.com/dictionary/legality
 The Universal Declaration of Human Rights via http://www.un.org/en/universal-declaration-human-rights/