Political Legitimacy: The Quest for the Moral Authority of the State, A Philosophical Analysis Inaugural-Dissertation zur Erlangung des Doktorgrades der Philosophie an der Ludwig-Maximilians-Universität München vorgelegt von Anthony M. Musonda aus Zambia LMU Bibliothek, München, 2006 Referent: Prof. Dr. Wilhelm Vossenkuhl Korreferent: Dr. Stephan Sellmaier Tag der mündlichen Prüfung: 28.07.2006 Acknowledgements I am deeply indebted to a number of institutions and people who greatly facilitated the completion of this work. First and foremost, Professor Dr. Wilhelm Vossenkuhl the supervisor of my doctoral dissertation, for his encouragement, patience, kindness, assiduity, total dedication and capability in the critical appraisal of earlier drafts of this dissertation and his helpful suggestions. Dr. Stephan Sellmaier, the head of the Münchner Kompetenzzentrum Ethik, for being generous enough to allow me use facilities and space of the resource room for doing my work. In addition, I am grateful to Professor Vossenkuhl on behalf of the Department of Philosophy and the Münchner Kompetenzzentrum Ethik for his efforts in securing me a one-year German scholarship to help me complete my dissertation with the University of Munich. Of course, I cannot forget to register my indebtedness to the Katholischer Akademischer Ausländer-Dienst (KAAD) for their having initially offered me a scholarship to enable me do my German language course, graduate course-work and research for my dissertation. I can also not forget to thank my employers, the University of Zambia in Lusaka, and my Head of Department, Professor Clive Dillon-Malone S.J., for their unwavering support and for granting me study-leave to enable me do my doctorate in Germany. Finally, I wish to express my unbounded gratitude to my wife, Valentina, and our three daughters, Mulenga, Mwenya and Domisa who had to endure several years of my absence from home but were still able to carry on with their daily lives without me. 2 Contents Introduction 4 1. The State 15 1.1. Conception of the State 15 1.1.1. Etymology of the Word 15 1.1.2. Max Weber’s Ideal Type Theory of the State 16 2 . The Origins of the State 20 2.1. The Ancient State Roman State 20 2.1.2. Background 2.1.2. The Roman Republic 21 2.1.3. The Roman Empire 26 3. The Christianisation of the State 27 3.1. The Rise of Christianity 27 3.2. The Germanic Invasions 28 3.3. The Feudal Polity of Estates 30 4. The Development of the Modern State 33 4.1. The First Stage of State Secularisation: the Investiture Controversy 33 4.2. The Renaissance: Revival of Roman Republicanism 37 4.3. The Second Stage of Secularisation: The Christian Reformation and the Development of State Sovereignty 44 4.4. Territorial State Sovereignty Imagined: Social Contract Theory 53 4.4.1. Thomas Hobbes’ Absolute Monarchy 53 4.4.2. John Locke’s Constitutional Limited Monarchy 58 4.4.3. Rousseau’s Popular Sovereignty 66 3 5. Completion of the Development of the State: Liberal Theory 75 5.1. The Social and Political Idea of Order in the French Revolution 75 5.2. The Social and Political Construction of Order of the Declaration and 77 Constitution. 5.3. The Idea of Order of the Nation 82 6. The Expansion of Modern State Sovereignty 86 6.1. The Colonial State 86 6.2. The Post-Colonial State. 87 7. Legitimacy 89 7.1. The Idea of a State 90 7.2. The Problem of State Legitimacy 93 7.3. Dimensions of Legitimacy 95 7.3.1. Legitimacy as derived from Legal Rules 95 7.3.2. Legitimacy as Normative Justifiability of Legal Rules 101 7.3.2.1 Functional Legitimacy 102 7.3.2.2 Affirmative Legitimacy 105 7.3.2.3 Moral Legitimacy 109 8. The Right to Rule 112 8.1. The Right to Command Persons within States Legal Jurisdiction 114 8.2. The Right to Non-interference by Persons, Groups or States outside 116 State’s Jurisdiction 8.3. The Right to Control a Particular Geographical Territory. 117 9. The Societal Needs Moral Justification of the Legitimacy of State Power. 118 9.1. Conclusion. 123 4 Introduction Every complex form of human society confronts the problem of what makes state power rightful or legitimate, the question of whether and why holders of state power have the authority to command and enforce the obedience of those subject to it and why the latter in turn have a corresponding obligation to obey. The problem of legitimacy of state power assumes significance once the origin and exercise of the order of domination of the state has been substantially challenged or has been widely experienced as oppressive and unjust. When the order of domination of the state is widely experienced as oppressive and unjust, people may obey the command of political authority from pre-moral motives such as fear, desire, custom or mere attachment to a ruler. However, an order of domination is not likely to be stable over time unless those subject to it recognise that when holders of state power claim the right to command, the claim is a legitimate one, that is, that it takes place in the context of values. Therefore, for an order of domination to be stable over time, the content of command must be based on valid norms that rulers share with the ruled and are justifiable to the latter. These norms prescribe the terms which are important for establishing and maintaining the order of domination, for defining the appropriate relationship between the state and its citizens and limiting state power by way of guaranteeing the basic rights of its citizens and providing for the separation of powers. Thus, the fundamental problem of the political order of domination of requires us to consider these terms in answering the question of whether and why power is rightful. But the problem is more salient and more pervasive in modern society. In order for us to better understand the problem of political order of the modern state as it presents itself today, we will first look at the historical development of the modern state in order to uncover the metaphysical foundation of values and beliefs that hold the state together, before turning to a discussion of the justification of the state to rule in terms of its purpose. To start with, we wish to state that the problem of the order of domination of the state could not have arisen in the ancient Greek times of the polis or city-state. For the city-state was experienced then as a natural cosmic order in which the citizen was situated, provided with a station and a purpose. In this community, the citizen had rights and obligations; but these rights were not attributes of a private personality and these obligations were not enforced by a state dedicated to the maintenance of a framework to protect the private ends of its citizens. Rather, a citizen’s rights in the Greek polis or city-state belonged to his station; his obligations flowed from the need to realise his own purpose in line with his station;1 and so, the obligation to obey authority was never in doubt in ancient times. In addition to this, the Greek city-state came into being for the sake of life. But once it existed, the city-state had as its purpose the good life. The good life, that is to say, the sum of all approved common purposes of religion, morals and art, as well as internal order and defence were all regarded as the function of the ancient city-state. In this sense, the city-state was not a state in the modern sense, which leaves much of the good life of citizens to social agencies and individuals. In view of the foregoing, the natural starting point for a discussion of the basic problem of the political order of domination of the state we consider is not the Greek city-state but, the 1 George Sabine, A History of Political Theory, 4th ed., Hinsdale, Illinois: Dryden Press, 1987, p. 31. 5 impersonal Roman state of republican times. The Roman state was conceived in terms of law that recognises the rights of all human beings and exists for the public good. Hence, political authorities were to be obeyed because they exercised certain offices that were conceived of as having been created for the public good, not for the person who exercised the office. Law not only formed the basis of the Roman state, whose revival in Renaissance Italy was central to the development of the modern state, as we know it today. It also supported the growth of the Roman Empire. As Roman political power and wealth grew, Roman customary law developed into the ius gentium or law of peoples based on practical universal principles of good business practice regarded as honest and fair that governed economic and political relations between Romans and non-Romans within the expanding Roman Empire. However, the expansion of the Roman Empire was followed by several centuries of eventual stagnation and paralysis. Lacking a steady supply of slaves and tribute from newly conquered peoples, it could not pay for its vast army, large bureaucracy and extensive public works. Hard measures were undertaken to meet increased costs that included an increase in taxes and the use of force to extract them which created extreme conditions of poverty of many people. As the unmanageability of the immense, far-flung imperial territory and harsh methods taken to counter it created extreme conditions, the Romans begun to turn away from the official paganism or belief in many gods.