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Facing Authority
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Facing Authority
A eory of Political Legitimacy
THOMAS FOSSEN
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Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
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© Oxford University Press 2024
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Library of Congress Cataloging-in-Publication Data
Names: Fossen, omas, author.
Title: Facing authority : a theory of political legitimacy / omas Fossen.
Description: New York, NY : Oxford University Press, 2024.
Identiers: LCCN 2023022875 (print) | LCCN 2023022876 (ebook) |
ISBN 9780197645703 (hardback) | ISBN 9780197645727 (epub)
Subjects: LCSH: Legitimacy of governments. | Authority. | Regime change. | General will.
Classication: LCC JC497 .F67 2024 (print) | LCC JC497 (ebook) |
DDC 320.01/1—dc23/eng/20230609
LC record available at https://lccn.loc.gov/2023022875
LC ebook record available at https://lccn.loc.gov/2023022876
DOI: 10.1093/ oso/ 9780197645703.001.0001
Printed by Integrated Books International, United States of America
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Contents
Acknowledgments vii
Introduction 1
PART 1: THE QUESTION OF LEGITIMACY
1. Beyond Codification 13
2. Rethinking Legitimacy 39
3. Rethinking Judgment 68
PART II: JUDGMENT IN THE FACE OF AUTHORITY
4. Portraying Power 95
5. Legitimacy as an Existential Predicament 123
6. Judgment as Timecraft 155
Conclusion 190
Bibliography 201
Index 215
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Acknowledgments
While writing this book, I have beneted tremendously from the support
of others on both a personal and a professional level. I feel extraordinarily
fortunate.
I have worked on this book, on and o, for nearly a decade, building on a
PhD dissertation on political legitimacy that goes back even longer. Rutger
Claassen and Johan Olsthoorn have been close friends and philosophical
conversation partners throughout the years, and their willingness to think
with me (without sharing my views and anities) has helped to shape and
sharpen the book. David Owen has followed the project from the beginning,
providing pivotal support and constructive feedback on the whole manu-
script, sometimes even on dierent versions of the same chapter. My PhD
advisors, Bert van den Brink, Joel Anderson, and Patchen Markell, have
remained invaluable mentors. eir encouragement and support were vital,
especially in the beginning. Joel has made many fruitful suggestions to this
project, chief among which was putting me on Brandom’s trail. Special thanks
are due to Herman Siemens, whose invitation to join his research project
brought me back to Leiden and enabled me to begin developing this book,
which turned out to be far more challenging than either of us anticipated.
It is impossible to fully acknowledge how much I have learned from count-
less other friends and colleagues. For stimulating conversations and feed-
back on parts of the manuscript, I wish to thank Lawrie Balfour, Banu Bargu,
Robin Celikates, Frank Chouraqui, Wout Cornelissen, Ilaria Cozzaglio,
Aart van Gils, James Gledhill, Loren Goldman, Tim Heysse, John Horton,
Fiona Hughes, Rob Jubb, J.J. McFadden, Sem de Maagt, Wayne Martin,
Tim Meijers, Darrel Moellendorf, Dorota Mokrosińska, Melissa Lane,
Marc de Leeuw, Hans Lindahl, Janosch Prinz, Bert van Roermund, Enzo
Rossi, Stefan Rummens, Andrew Schaap, Maria van der Schaar, Nica Siegel,
Marin Terpstra, Mathias aler, and Manon Westphal. Several inspiring
conversations with Chris Meckstroth have helped me at key points in the
book. David Mak and Gijs van Maanen provided valuable research support
and helpful comments. Students in my courses on practical judgment and
Bruno Verbeek’s course on authority also provided helpful feedback. I was
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viii
able to present parts of the work in progress in workshops and colloquia in
Amsterdam, Ankara, Bad Homburg, Edinburgh, Essex, Exeter, Frankfurt,
Glasgow, Leiden, Milan, Norwich, Prague, Princeton, Reading, Rotterdam,
and Utrecht, and am grateful to the participants in those discussions. anks
to Tim Meijers for organizing a workshop on the manuscript in Leiden,
supported by the Research School in Philosophy (OZSW), and to Meike
Bokhorst, James Gledhill, Soa Näsström, and David Owen for their incisive
commentaries. anks also to Eva Erman and Niklas Möller for engaging
critically in print with my earlier contributions, pressing me to clarify my
ideas. Several anonymous referees have oered detailed and constructive
criticism on the whole manuscript and on papers on which some chapters
are based. e late Glen Newey oered characteristically generous and pen-
etrating feedback on an early version; I am sad that we were unable to con-
tinue our exchanges.
My home base throughout these years has been the Institute for
Philosophy at Leiden University. I am grateful for the institutional support
and for the collegial environment. I have learned much from my colleagues
and greatly enjoy their company. I would like to make special mention of
Frank Chouraqui, Victor Gijsbers, Tim Meijers, Dorota Mokrosińska, and
Bruno Verbeek.
It was a privilege and a pleasure to be able to spend time abroad as a visiting
scholar on several occasions. Each of these visits was crucial for completing
the book, and I am grateful to many colleagues, fellow research fellows, and
helpful sta members for making those visits such stimulating experiences.
For hosting me, I thank Tim Heysse of the RIPPLE group at KU Leuven,
Wayne Martin at the University of Essex, Didier Fassin and Alondra Nelson
at the Institute for Advanced Study in Princeton, and Rainer Forst and Beate
Sutterlüty at the Goethe University (Frankfurt) and the Forschungskolleg
Humanwissenschaen in Bad Homburg.
I am deeply grateful to my parents, Tom Fossen and Stella Muns, whose
unfaltering support throughout my life continues to this day.
Most of all, I wish to thank my partner, Frederike Kaldewaij, for sharing
a life with me, and for understanding what it is that I’m trying to do in this
book. Besides helping to improve parts of the text with her philosophical
mind and her writer’s eye, she has sustained me with joy and condence, and
joined me on adventures to distant lands. Just one day aer I submitted a
rst version of this manuscript, we were joined by our daughter Lea, whose
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ix
presence, even though it did not expedite the work that remained, is im-
mensely appreciated.
My research beneted from nancial support from the Alexander von
Humboldt Foundation, the Institute for Advanced Study in Princeton,
and the Netherlands Organisation for Scientic Research (NWO, Veni-
grant 275- 20- 047 and Open Competition 360- 20- 290). A shorter version
of Chapter 1 appeared in Social eory & Practice under the title “Political
Legitimacy as a Problem of Judgment” and Chapter 5 in Political eory
as “Political Legitimacy as an Existential Predicament.” Chapter 2 restates
and hopefully improves upon my earlier attempts in e Journal of Political
Philosophy (“Taking Stances,” 2013) and the European Journal of Political
eory (“Language and Legitimacy,” 2019).
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0001
Introduction
When your friends call on you to take to the streets and demand the fall of
the regime, and you wonder how to respond, this prompts a practical pre-
dicament: Shall I go to the square to join the protests, try to ignore them,
or, perhaps, express my loyalty to the regime in counterprotest? What stance
should I take toward the regime? is problem, which I will refer to as “the
question of legitimacy,” becomes particularly explicit and pressing at crit-
ical moments, such as popular uprisings, when a regime faces such mas-
sive opposition that its survival is at stake. But it is also a question that we
all address in our everyday lives, if only implicitly, even where a regime is
well established and generally accepted. We all nd ourselves in a constel-
lation of power in which various agencies and institutions attempt to rule
us: regulating our behavior, providing education, raising taxes, controlling
borders, granting or withholding citizenship, profoundly shaping our lives
and even our sense of self in manifold ways. We inevitably comport ourselves
toward those authorities in one way or another. Whether or not we stop to
think about it, anyone facing authority also faces a practical predicament: Is
this regime legitimate, or does it merely purport to be so? How to relate prac-
tically to the forms of power with which we nd ourselves confronted?
What is at stake in the question of legitimacy is one’s practical relation to
what we may loosely call “the authorities” or the “regime.” Of course, we can
also speak of the legitimacy of particular leaders, laws, or political decisions.
But the sense of political legitimacy at issue here goes deeper. e call for the
regime to fall makes forcefully clear what is at stake: this is a struggle that
touches on the political order as such; a conict about the “right to rule.”
Struggles for political legitimacy tend to be situations of deep disagree-
ment. e authorities and their critics may not just disagree about whether
the regime is entitled to rule, but also why. For someone who tries to address
this question from a practical point of view— wondering what to do, what
stance to take— it can give rise to profound, even existential uncertainty,
raising dilemmas about how to spend time and energy, where one’s loyalties
lie, whether to risk life and limbs, and for what.
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Faced with disagreement and uncertainty, political philosophers’ ambition
is oen to try to resolve it. eories of political legitimacy usually try to iden-
tify the necessary and sucient conditions for a regime to be legitimate. On
this approach, a theory of legitimacy is essentially a normative codication
project. e thought is that if you nd the correct principles, then you can
adjudicate who is right in a struggle for legitimacy. A wide range of standards
has been proposed, from the provision of order and stability to human rights,
consent, or collective self- government. Yet despite the best eorts, principles
and criteria of legitimacy remain subject to deep disagreement and profound
uncertainty, both in theory and in practice. Of course, the persistence of con-
troversy does not show that the true theory cannot be found. But perhaps it
ought to give us pause to ask whether this quest for moral knowledge is the
most fruitful approach and whether it departs from an adequate diagnosis of
the problem.
is book takes a dierent approach. It investigates the ways in which the
question of legitimacy can be addressed, practically, in lieu of a theoretical
solution. e key is to shi focus from the justication of principles to the
practice of judgment. What is involved in judging the legitimacy of a regime,
from a practical point of view? And what does it mean to do this well? What
can one do, and what must one know, in order to aptly respond to this ques-
tion in conditions of uncertainty and disagreement? In my view, the phil-
osophical task for a theory of political legitimacy is not simply to nd the
right principles, but more fundamentally to explicate the ways in which the
question of legitimacy manifests itself from a practical point of view, and illu-
minate the forms of activity through which we might engage it.
is shi in focus is only meaningful if judgment is not simply a matter of
applying given principles to the case at hand. Indeed, I will argue that such
a view misses the depth and complexity of what is at stake in the question of
legitimacy. To treat judgment as the application of normative standards is to
relegate disagreement and uncertainty about such standards to another do-
main, that of justication. What makes a regime truly legitimate then seems
to be a question for philosophy to settle by means of moral argument. But
this is in eect to wish away, rather than confront, disagreement and uncer-
tainty within the horizon of judgment, for it holds out the promise of a solu-
tion that is in practice always deferred.
In a nutshell, I propose that we view judging legitimacy not as a matter
of applying given principles, but of engaging in a complex of political ac-
tivities. Judging legitimacy is doing various things, comporting ourselves
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3
toward others, toward ourselves, toward the regime, and to aspects of the
world that surrounds us. Part I explicates this understanding of the concepts
of political legitimacy and judgment. Part II investigates the concrete forms
of activity that constitute such judgment. It argues that the question of legit-
imacy appears in three distinct but interrelated ways. Whether the regime
is legitimate is partly a matter of what it is like, how it is aptly represented
or portrayed— say, as a parliamentary democracy, or a police state? It is also
a question of identity: Who am I, and who are we? Can I recognize myself
in who the authorities take me to be? And it is a question of the meaning of
events: What happened here— was it a coup, or a revolution? ese issues
constitute the heart of the question of legitimacy: to engage with them is to
engage with the question of legitimacy.
On the account I develop, addressing these questions is not just a matter
of reection. To understand what it means for such judgment to go well, we
need to grasp the form of the activities that constitute judgment, rather than
xate on which judgment is substantively correct. In judging, one partakes
in the ongoing and open- ended practices of political contestation through
which a regime is constituted as what it is, we become who we are, and our
world takes shape. e practice of judgment is co- constitutive of its object, its
subject, and its surroundings. is tells us something about what is at stake
in struggles for legitimacy. It doesn’t tell us which judgments we ought to
make, what stance to take, who to be. is is not to deny that criteria play a
meaningful role in judging, and that judging is partly a matter of articulating
reasons. Rather, it is to draw attention to the ways in which reasons come into
play while also remaining in question. In this sense, political reality resists
the attempt to resolve the question philosophically. Good judgment is not a
matter of correctly applying justied principles, but depends on our modes
of involvement in a situation, on the ways in which we experience and re-
spond to various aspects of political reality in conditions of uncertainty and
disagreement.
What to expect from a theory of political legitimacy?
It may be best to announce clearly at the outset: the question of legitimacy will
not be resolved here. Instead, progress lies in a better grasp of the problem,
and of why it resists the kind of solution that philosophers have sought to
provide for it. For the purposes of this book, I bracket the question of what
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makes a regime legitimate. e brackets stay put for the duration of our en-
quiry and the question remains open.
What is oered here may be called a ‘theory of political legitimacy,’ but it
diers signicantly in shape and substance from what usually goes by that
name in political philosophy or political theory (which I consider synony-
mous). For many philosophers, theorizing about political legitimacy just
means articulating and justifying normative standards of legitimacy (as I dis-
cuss in Chapter 1). From that point of view, it may hardly sound intelligible
to say that the present project bears on the same problem at all. I nonetheless
think it is apt to call this a theory of legitimacy because the book aims to do
what in my view a theory of political legitimacy ought to do in the rst place,
but is neglected by mainstream theories.
What I mean by a theory of political legitimacy is a philosophical frame-
work for the analysis and diagnosis of a certain kind of political problem,
that of how to relate practically to the political order with which one nds
oneself confronted. I assume that the question of legitimacy is rst and
foremost a practical predicament that people face, implicitly or explicitly,
in real- life political situations. e task of a theory of political legitimacy
is to grasp the nature of that predicament, to render it perspicuous, to ar-
ticulate what is at stake, and to illuminate the ways in which it might be
addressed (if not resolved). By saying that the issue is in rst instance a
practical predicament I do not mean that a theory of legitimacy must oer
readily applicable answers or policy recommendations, but that it should
do justice to the ways in which the question manifests itself in practice.
Prior to specifying when authorities are legitimate or illegitimate, we need
to inquire what it is we are doing in asking whether a regime is legitimate
or not— to make explicit how the question of legitimacy presents itself and
engages us in practice.
One reason why it is important to think about political legitimacy in terms
of judgment is that the neglect of this deeper question can lead to distortions
and may ultimately render a theory meaningless. To see this, consider for
a moment an example from a very dierent context, the eld of aesthetics.
Stanley Kubrick’s Napoleon is sometimes called the “greatest lm never
made”: Kubrick spent years of his life and thousands of dollars preparing for
this movie, but he envisioned it on such a grand scale that the lming never
got o the ground. Now imagine a group of academic philosophers in a sem-
inar room who want to devise a theory of beauty, or of artistic excellence. It
would be very odd if they were to do so by imagining what Kubrick’s lm
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5
would have been like, hold that up as a paradigm of cinematic beauty, and
try to draw up criteria of what makes it so. is would be odd not so much
because there are no criteria of beauty, but because you cannot intelligibly
claim to judge an object beautiful if you have never actually encountered it in
the world, however much you learn about it from historical sources and the
testimony of others. Aesthetic judgment emerges from the encounter with
the object, from the interplay between subject and object. e aesthetic ob-
ject needs to hold you in its thrall. Whatever these thinkers are doing, it is a
very dierent practice from our everyday judgments of art, and it is hard to
see how whatever they come up with in this manner would bear on the latter
at all.
Could something similar be true of judging political legitimacy? To what
extent does the concrete encounter between subject and authority have a
similar signicance with respect to the question of legitimacy, as the actual
encounter with an artwork has for judgments of beauty? e point here is not
to reduce politics to aesthetics. Rather, the point is that political philosophers
should not simply draw up criteria, but try to think through what it means to
judge legitimacy in practice, just as real philosophers of aesthetics (contrary
to their imagined counterparts) try to think through the involvement of sub-
ject and object in aesthetic judgment. To draw attention to judgment is not an
original move; there is a vast literature on political judgment (much of which
is inspired by Kant’s account of aesthetic judgment and Arendt’s reading of it,
which I discuss in Chapter 3). Yet theorists of judgment have hardly thought
about political legitimacy, and theorists of political legitimacy have hardly
thought about judgment.
We can approach this point also from the angle of a theory of meaning.
Our imaginary aestheticists have started a new language game in their sem-
inar room, deploying words familiar from everyday art criticism in novel
ways. at happens all the time in academic discourse and is not per se prob-
lematic. It becomes problematic if one makes the mistake of simply assuming
that theoretical concepts have the same signicance in the context of an ac-
ademic dispute as the practical concepts from which they are derived do
in the relevant practice. Dierences of context between practical situations
(like the seminar room and the barricades) and dierences of perspective
among people within them matter. At least they do on the pragmatist theory
of meaning with which I operate (more about this in Chapter 2). is book is
an attempt to think through how such dierences of context and perspective
matter to a specic kind of political predicament.
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is presupposes a distinction— albeit not a rigid one— between theory
and practice. inking philosophically about political legitimacy is not ex-
actly the same activity as disputing legitimacy in situ. at does not mean
that these activities can be isolated from each other, or that theories relate to
politics from the “outside.” But insofar as political philosophy seeks to under-
stand political phenomena, and not directly change them, it is a second- order
practice. While nowadays this is for the most part an academic enterprise, it
is not disconnected from its subject matter, and political agents (including
philosophers themselves) can draw on ideas and arguments proposed there
while engaging in political action and discourse. More directly, philosophical
theories can themselves be put forward as political interventions, as histor-
ical works of political theory oen were. So philosophical dispute and po-
litical performance are not mutually exclusive categories. omas Hobbes’s
Leviathan is a paradigmatic example. While Hobbes did indeed oer some-
thing we can see as a criterion of legitimacy (roughly, that one ought to accept
any regime that is reasonably eective at securing order and stability), he did
so in the context of a much deeper enquiry into what it means to be a political
subject, the nature of authority, and the place of both in the world— thereby
engaging performatively in the forms of activity that I take to be constitutive
of judging legitimacy. And the manner in which he did so, both in terms of
the topics he addressed, and the rhetorical force and framing of his project,
evinces an acute sense of the conditions of his own involvement.
Contemporary theorists of legitimacy could insist that their work should
likewise be understood as a situated political performance. And yet (as we
shall see in Chapter 1), their project is oen framed far more narrowly as a
quest for correct normative standards, in abstraction from seemingly “de-
scriptive” concerns about the nature of power and the identity of subjects,
which are relegated to the social sciences. What is missing here is a reexive
sense of the forms of activity— and of judgment— one engages in when
proposing such a theory, as well as curiosity about what else might be in-
volved in addressing the issue besides exchanging moral arguments. ere
are important exceptions. Chapter 1 also shows that Jürgen Habermas and
John Rawls are highly attentive to the specicities of the context and per-
spective from which their principles of liberal and democratic legitimacy
are supposed to make sense, and that these principles are not to be taken
as adjudicating but rather expressing the legitimacy of a regime as such.
Still, they do not give us an explicit alternative account of what is involved in
judging the legitimacy of a regime.
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7
It does not follow from my refusal to oer prescriptions that the theory
oered here is merely descriptive. To classify theories as purely “normative”
or “descriptive”— oen with the insinuation that the latter properly fall within
the remit of social science, not philosophy— gives the misleading impression
that those endeavors are conceptually independent and can be meaningfully
pursued in isolation from each other. is study takes its bearings from the
philosophy of language, theories of action, and political ontology rather than
moral theory. But it is normative in a sense, not because it aims to solve po-
litical questions with action- guiding answers, but because it tries to explicate
the political point of an irreducibly normative concept, to oer a sense of
orientation to what is salient where legitimacy is in question from a practical
point of view, and to articulate what it means to judge well in such situations.
Overview
e rst part of this book develops a philosophical vocabulary for grasping
the question of legitimacy. Part II goes on to explore in detail three dis-
tinct ways in which the question of legitimacy manifests itself in practice.
Chapter 1 examines how the question of legitimacy is framed in contem-
porary approaches, by explicating their largely implicit views of judgment.
Despite the variety in content, so- called moralist and realist theories of le-
gitimacy typically share the same form, which I call “normativism”: a theory
of legitimacy is a codication project, concerned with the articulation and
justication of normative standards. is assumes that judging legitimacy
appropriately is a matter of applying the principles oered by a philosophical
theory to a case at hand. According to this picture, disagreement and uncer-
tainty are to be addressed at the level of justication; there is no room, within
the horizon of judgment, for coping with them. Even political realists, who
argue that the moralist mainstream of political philosophy is out of touch
with reality, have not developed a signicantly dierent way of thinking
about the question of legitimacy: they tend to look for alternative, nonmoral
criteria of legitimacy, but they leave unquestioned the underlying presup-
position that distinguishing between legitimacy and illegitimacy is a matter
of applying given principles. e chapter goes on to argue that John Rawls
and Jürgen Habermas exemplify a dierent picture of how principles relate
to practice, which is more attuned to the political conditions in which the
question of legitimacy arises, albeit in the highly particular setting of liberal
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democracies. Still, their grasp of what judging the legitimacy of a regime
involves remains implicit in the performative upshot of their writings.
What does it mean to say that a regime is legitimate or illegitimate?
Chapter 2 draws on recent pragmatist philosophy of language, especially the
seminal work of Robert Brandom, to conceptualize political legitimacy in a
way that avoids the dichotomy between the normative and the descriptive. It
develops a conception of politics as stance taking toward rule, and explains
the meaning of the concept of political legitimacy in terms of the use of ‘legit-
imacy’ in that form of political practice. e role of the concept of legitimacy
in this type of context is to make your practical stance toward the regime
explicit and to dispute it with others. Legitimacy isn’t a self- standing prop-
erty that political authorities have or fail to have under certain independently
speciable conditions. Rather, it is a normative status that is attributed or
withheld from concrete, embodied perspectives of political subjects taking
stances toward a regime. A key challenge in this chapter is to explain the dif-
ference between legitimacy de jure and de facto— what it means for some-
thing to be legitimate, as opposed to its merely being taken as such by others,
or indeed by oneself. e key is to interpret this dierence in terms of the
dierences of perspective among participants engaged in stance taking,
rather than with reference to a property with independently speciable
necessary and sucient conditions. e distinction between something’s
being legitimate and its being merely taken as such arises, and only makes
sense, from a practical point of view. e resulting view both avoids positing
perspective- independent moral properties to which judgments are answer-
able, and steers clear of the Weberian collapse of normativity into facticity,
which is common in social- scientic approaches to legitimacy, although it
does not tell us whether to call a regime legitimate or illegitimate in con-
crete cases.
Chapter 3 turns from the meaning of legitimacy to the problem of judg-
ment. Judgment is understood here as a complex of practical activities
through which our sense of political reality is constituted, maintained,
transformed, and sometimes subverted. is contrasts with two predomi-
nant models in political theory: judgment as norm application and reective
judgment. Despite their dierences, those two models have assumptions in
common: they identify judgment with a discrete moment of decision and
with the exercise of a specic mental capacity (or an interplay of mental
capacities). In contrast, judgment is cast here as an ongoing, open- ended,
and intersubjective practice. Perhaps counter- intuitively, decisions are not
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9
decisive for judging; to judge is to partake of a practice. is enables us to
rethink what it is for political judgment to go well or poorly, drawing atten-
tion not to the operations of our minds, but to the specic forms of prac-
tical involvement in a situation and engagement with others that constitute
judgment; to what one can do, practically, rather than what one should know,
theoretically, in addressing the question of legitimacy. What makes political
judgment such a challenge is not so much our lack of philosophical knowl-
edge (what is usually meant by a “theory of legitimacy”), but rather the stub-
born character of political reality and the precariousness of our practical grip
on that reality.
To get a more concrete understanding of what is involved in judging le-
gitimacy, we need to develop a more textured account of the activities that
constitute judgment in a struggle for political legitimacy. Part II builds on the
theoretical framework developed in Part I to investigate the ways in which
people can practically engage with the question of legitimacy, and what it
means to do this well.
e philosophical question at stake in Chapter 4 is how judgment (of le-
gitimacy) relates to its object— political authorities. Is the regime aptly
called a parliamentary democracy, or an arm of global imperialism? Are the
leaders genuinely elected representatives, or a gang of thugs? Normativist
approaches treat these questions as preliminary matters, prior to judging
legitimacy. In contrast, on the view presented here, the question of legiti-
macy is profoundly a matter of what power is like in a particular context. e
practice of representing power is integral to judging: judging legitimacy is a
matter of representing or portraying relations of power. To call the form of
power with which one nds oneself confronted a “state,” for example, is not
merely to describe it, but to partake of the practice of representation through
which the state is constituted as what it is. Judgment is co- constitutive of its
object. Good judgment, then, is not simply answerable to reality (truthful-
ness)— doing justice to the way things are with the regime— but also has a
creative dimension (virtuosity).
Chapter 5 considers the role of the subject of judgments of legiti-
macy: someone who nds themself confronted by power. Philosophically,
what is at stake here is how to grasp the relation between identity and polit-
ical legitimacy. Does the appeal, in many struggles for legitimacy, to a sense
of who “I” am or who “we” are simply reect a contingent psychological dis-
position, or is there some internal, conceptual connection with legitimacy?
How, if at all, does one’s identication with a nation, gender, or otherwise bear
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on the legitimacy of the regime with which one nds oneself confronted? e
chapter proposes that identication is integral to judging legitimacy. Identity
is not a ground for an answer to the question of legitimacy, but part of what is
at stake in it. A struggle for legitimacy is a struggle over the constitution and
characterization of collective selood, and judging legitimacy is to partake
in such a struggle. e question of legitimacy is an existential predicament: a
question of who you are. I explicate three qualities of this dimension of judg-
mental practice: consistency, integrity, and responsiveness.
Having considered the role of the object of judgment and the identity of
the judging subject in judging legitimacy, it remains to explore how judg-
ment relates to its surroundings, in Chapter 6. e encounter between sub-
ject and authority is temporally and spatially situated, and where and when
it occurs matter to the judgment that is called for. e chapter focuses spe-
cically on the signicance of historical and current events for judging le-
gitimacy. Whereas normativist approaches take events as xtures by
treating their meaning, at the moment of judgment, as a given, I build on
the initial account of the temporality of the act of judgment advanced in
Chapter 3, to propose that we think about judgment ‘in the present progres-
sive,’ as standing in an open- ended practical relation to events. In taking
a stance toward the regime, a judging subject responds to and partakes in
events. Such judgment is therefore exposed to the disagreement and uncer-
tainty to which the questions “What is happening?” and “When are we?” give
expression. Coping with these questions involves grappling with the ways
in which multiple timelines intersect and clash in an encounter between
subjects and authorities. Judgment in this respect is a matter of engaging in a
dimension of political activity that I shall call ‘timecra.’ Here, again, I close
by reecting on the virtues of this judgmental activity, which I label kairos,
virtù, and (again) responsiveness.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0002
1
Beyond Codication
1.1 Introduction
What is involved in judging the legitimacy of a regime, and what does it
mean to do this well? eories of legitimacy rarely address this question ex-
plicitly.1 But that does not mean they do not have a view about it. is chapter
aims to reconstruct the largely implicit views of judgment in the approaches
to political legitimacy that predominate today, and to highlight some of their
presuppositions.
Surveying the academic landscape, one cannot fail to notice a chasm be-
tween philosophical and social scientic approaches to the topic. As many an
encyclopedia entry attests, philosophers work with a normative conception
of legitimacy and social scientists with a descriptive one.2 Political legitimacy
in the normative sense refers to a normative status of political institutions,
usually understood as the moral right to rule. e task description assigned
to philosophers is to specify the necessary and sucient conditions for po-
litical authority to be legitimate (de jure). Which moral standards must a
regime meet to qualify as legitimate? Social scientists, in contrast, typically
abstract from the normative status of a regime and examine the empirical
conditions and eects of its being taken to be legitimate by subjects (de facto).
Under what conditions are individuals or groups likely to hold a state to be
legitimate, and what eects does the belief in legitimacy have on a political
system?
In terms of judgment, according to this division of labor, it would be for
social scientists to enquire how people in fact judge, while philosophers ask
not exactly how people can or should judge, but rather which judgments
they ought to render.3 You may already see a gap opening up here, for neither
1 e only study I have found that directly speaks to this is the following insightful essay: Mulligan,
“Legitimacy and the Practice of Political Judgement.”
2 For example: Ansell, “Political Legitimacy”; Beetham, “Legitimacy”; Dogan, “Conceptions of
Legitimacy”; Flathman, “Legitimacy”; Peter, “Political Legitimacy”; Simmons, “Legitimacy”; Bagg
and Knight, “Legitimacy.”
3 As to the former, see Jost and Major, e Psychology of Legitimacy.
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approach raises the question of what it means to judge well. As I will argue,
Max Weber’s social scientic redenition of legitimacy in terms of people’s
beliefs has driven a wedge between the practical meaning of the term and
its scholarly use, generating persistent confusion. Meanwhile, philosophers’
focus on what “makes” a regime legitimate treats legitimacy as an abstract
normative property, without illuminating the practical predicament at issue.
Much philosophical work on legitimacy shares a distinctive form (despite
the variety in content), which I call “normativism”: the theorist aims to ar-
ticulate and justify normative standards, presupposing that judgment is a
matter of applying such standards to a case at hand. A theory of legitimacy
becomes essentially a codication project. is framing of the problem has
become so ingrained that it tends to be taken for granted. As we will see, even
political realists who recently proposed alternatives to the moralism of main-
stream theories remain committed to normativism. But this is, in fact, a very
narrow understanding of what a theory of legitimacy is supposed to oer.
None of these approaches has paid sustained attention to the ways in which
the question of legitimacy presents itself, and the forms of activity through
which it might be addressed in practice (if not resolved).
To begin to explore what a dierent way of thinking philosophically about
legitimacy might look like, I turn to John Rawls and Jürgen Habermas. In
their theories, principles have a rather dierent role than in normativist
theories: they express rather than adjudicate judgments of the basic legiti-
macy of a constitutional- democratic regime. Neither Rawls nor Habermas
purports to resolve the question of legitimacy philosophically. But if their
principles are expressive of the legitimacy of the regime as such, they do not
seem to get to the bottom of the problem. Still, I nd implicit in the perfor-
mative upshot of their theories of constitutional democracy intimations to-
ward a dierent picture of what judging the legitimacy of a regime involves.
Pursuing those intimations points us toward a “pragmatist” approach. It
shis the direction of enquiry from the content of principles to the activity
of judging. e task for a theory of legitimacy, on this view, is in rst instance
to grasp the various ways in which questions of legitimacy present them-
selves in concrete situations, prior to, and perhaps instead of, resolving them
philosophically.
e aim of this chapter is to explicate these notions of judgment and
thereby to undermine normativism’s prima facie self- evidence— not to re-
fute it. e limitations of normativism will come into view over the course
of the book. Each of the chapters in Part II argues, in a dierent way, that
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15
normativism is not equipped to respond to disagreement and uncertainty
within the horizon of judgment. Instead, disagreement and uncertainty are
relegated to the domain of justication, which is logically prior to judgment
but in practice indenitely deferred. is holds out the promise that the
question of legitimacy will be philosophically resolved, but in eect merely
wishes away uncertainty and disagreement.
1.2 Weber’s legacy
e traditional division of labor has its roots in the early twentieth century
in the inestimably inuential work of Max Weber.4 Weber insisted emphati-
cally on a strict separation of facts and values. Only the former are the proper
object of study of social scientists in their role as scientists. It wasn’t that so-
cial scientists ought not concern themselves with value judgments; Weber
oen involved himself in political debates. Nor did he mean that discussions
of value were pointless or meaningless. Rather, his claim was that scientists
should be clear about the status of their claims. Science has a kind of au-
thority over matters of fact that it lacks over matters of normative evaluation,
and scientists should not misuse their academic status to give undue cre-
dence to unscientic claims:
ere is no (rational or empirical) scientic procedure of any kind whatso-
ever which can provide us with a decision here. e social sciences, which
are strictly empirical sciences, are the least tted to presume to save the in-
dividual the diculty of making a choice, and they should therefore not
create the impression that they can do so.5
Underlying this view of the task of social science was a view of the nature of
normativity. Normative questions cannot in principle be rationally settled.
Meaningful discussion of values is possible, but the point of such discussion
4 ‘Legitimacy’ has a long- standing history, both as a philosophical term of art and as a practical
political concept. In a detailed history of the term, omas Würtenberger locates its emergence
as a key term of political contestation in the early nineteenth century, although it played a role in
philosophical discourse about the state long before that. Würtenberger, “Legitimität, Legalität,”
678. See also Mulligan, “e Uses of Legitimacy in International Relations,” 356– 62; Applbaum,
Legitimacy, 21– 22.
5 Weber, “e Meaning of ‘Ethical Neutrality,’ ” 19.
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is not to justify the grounds of a decision, but to clarify what one is ultimately
committed to.
In this light, it may strike us as paradoxical that legitimacy, a normative
concept par excellence, is primarily a sociological category for Weber, rarely
found in his political writings. But the meaning of legitimacy in Weber’s soci-
ology is equivocal. On the one hand, he refers to legitimacy as an entitlement
claimed by authorities: “Every [system of rule] attempts to establish and to
cultivate the belief in its legitimacy.”6 Believing in legitimacy is a matter of
regarding the authorities “as in some way obligatory or exemplary.”7 Here,
legitimacy clearly gures as a normative concept. But in a move that remains
a source of confusion and ambiguity in the social- scientic literature, Weber
then goes on to redene legitimacy, for sociological purposes, in terms of
the belief in legitimacy: “Naturally, the legitimacy of a system of [rule] may
be treated sociologically only as the probability that to a relevant degree the
appropriate attitudes will exist, and the corresponding practical conduct
ensue.”8 So Weber uses “legitimacy” in two dierent ways, corresponding to
two dierent perspectives or standpoints. From a participant’s perspective,
it refers to an order’s normative status, its binding or obligatory character,
the validity of which is beyond the pale of social science. From an observer’s
point of view, it is a descriptive measure of the extent to which individuals at-
tribute this normative status to a regime. e latter is sociologically relevant
because of the ecacy of the beliefs or attitudes of a population for the oper-
ation of political institutions.
Weber’s descriptive redenition of legitimacy in terms of belief in legit-
imacy is unfortunate. One could avoid the circularity by appealing to cog-
nate terms, speaking, for example, of belief in “rightness” or “propriety.”9
But the problem remains that legitimacy, from a rst- person perspective, is
a normative status, as Weber himself notes. From a practical point of view,
whether something is legitimate and whether it is taken or treated as such
are clearly distinct questions. When a crowd cries “illegitimate” in front of
a government building, they are not issuing a report about their lack of sup-
port, but a reproach. And when a president claims that they are the only one
6 Weber, Economy and Society, 1:213. I translate Herrscha as “rule” rather than “domination”
because “domination” carries a negative connotation of naked power that “rule” and “Herrscha”
do not.
7 Weber, 1:31.
8 Weber, 1:214.
9 Easton, A Systems Analysis of Political Life, 278; cf. Nozick, Anarchy, State, and Utopia, 134;
Simmons, “Justication and Legitimacy,” 749.
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17
who can legitimately rule, they thereby imply that their rule ought not to be
subverted. Weber’s redenition tempts scholars to lose track of the dierence
of perspective involved between a practical and a sociological context, and to
equivocate between saying that a political authority is taken to be legitimate
(de facto) and that it is legitimate (de jure). is conation of legitimacy and
belief in legitimacy can be found in much of the social- scientic literature
aer Weber.10 As a consequence, it comes to look as though being legitimate
were “merely a matter of having obedient followers,” as one commentator
aptly put it (and as many others similarly argued).11
Many social scientists nowadays take care to acknowledge that legitimacy
is also, and perhaps rst and foremost, a normative concept.12 No doubt this
is due, in part, to David Beetham’s inuential critique of Weber. Beetham
argued that it is crucial, also for the purposes of social science, to conceptu-
alize legitimacy as a normative status. A legitimacy claim is an assessment
of the quality of a regime, not of people’s beliefs about it. “[T] he social sci-
entist, in concluding that a given power relationship is legitimate, is making
a judgement, not delivering a report about people’s belief in legitimacy.”13
What makes such judgments scientically respectable for Beetham is that
the social scientist does not judge by reference to his or her own preferred
standards, but by standards that “pertain within the society in question.”14
A social- scientic judgment of legitimacy is one of “legitimacy- in- context,
rather than absolutely, ideally or abstractly.”15 is stands in contrast to phi-
losophy, which he sees as concerned with “independent or universal criteria
of the right or the good.”16
10 Here’s a sampling: Dahl, Modern Political Analysis, 53– 54; Easton, A Systems Analysis of Political
Life, 287– 88; Lipset, “Social Conict, Legitimacy and Democracy,” 88; Weatherford, “Measuring
Political Legitimacy”; Zelditch, “eories of Legitimacy,” 33.
11 Turner, “Review,” 1045; cf. Schaar, “Legitimacy in the Modern State,” 108; Pitkin, Wittgenstein
and Justice, 280– 86; Habermas, Legitimation Crisis, 97– 102; Grafstein, “e Failure of Weber’s
Conception of Legitimacy.” Amanda Greene defends the moral value of Weber’s conception of legiti-
macy: Greene, “Legitimacy without Liberalism.”
12 For example, Gilley, e Right to Rule, 3; Hurrelmann, Schneider, and Steek, Legitimacy in an
Age of Global Politics, 3; Zelditch, “eories of Legitimacy,” 33.
13 Beetham, e Legitimation of Power, 13. Beetham’s book sparked a debate about the usefulness
of the concept of legitimacy in social science: O’Kane, “Against Legitimacy”; Beetham, “In Defence
of Legitimacy”; Barker, “Legitimacy: e Identity of the Accused”; O’Kane, “Legitimacy and Political
Science.” Hurrelmann, Schneider, and Steek see Beetham as exemplifying a turn toward processes
of legitimation; Legitimacy in an Age of Global Politics, 8– 9. Beetham’s conception was taken up,
for example, by Gilley, e Right to Rule. For related discussions, see also Coicaud, Legitimacy and
Politics; Barker, Legitimating Identities.
14 Beetham, e Legitimation of Power, 13.
15 Beetham, 14.
16 Beetham, 13, cf. 5– 7.
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In spite of his emphatic critique of Weber,17 Beetham’s own conceptuali-
zation falls prey to the same problem. If the social scientist is to abstain from
applying his or her own criteria, then whose standards of legitimacy are to
count? ose that pertain in the society, Beetham says. But what if there is
disagreement about these criteria within a society? Which and whose criteria
are to count as the standards of the society? e social scientist will want to
remain neutral here. So one answer might be to refuse to decide, and say that
legitimacy is a matter of degree: the more people in terms of whose beliefs the
authorities can be justied, the more legitimate they are. Indeed, this is what
Beetham’s view boils down to. He says: “A power relationship is not legiti-
mate because people believe in its legitimacy, but because it can be justied
in terms of their beliefs.”18 But is this proposal so dierent from Weber’s, aer
all? Despite Beetham’s insistence that social scientic claims about legitimacy
are judgments, they remain reports or descriptions of a sort— of “the degree
of congruence . . . between a given system of power and the beliefs, values
and expectations that provide its justication”19— and not attributions of a
normative status. Consequently, the concept of legitimacy means something
very dierent in the hands of the social scientist than in the hands of those
claiming and contesting legitimacy in practice. Again, whether something is
legitimate, and whether it conforms to any number of people’s standards of
legitimacy— these are not the same question. Although Beetham is clearly
aware of the distinction, his redenition of legitimacy obscures it because
it drives a wedge between what ‘legitimate’ means in the mouth of a par-
ticipant and a scientic observer— exactly the problem with Weber. In the
next chapter, I pursue a strategy for conceptualizing political legitimacy that
clears up this lingering confusion between something’s being legitimate, and
its merely being taken as such, by attending to the dierent perspectives from
which legitimacy is attributed or withheld.
1.3 e right to rule
In opposition to the reductive denitions of legitimacy put forward in the
social sciences, political philosophers have always insisted that we must dis-
tinguish carefully between something’s being legitimate and its merely being
17 He calls Weber’s inuence “an almost unqualied disaster.” Beetham, 8.
18 Beetham, 11.
19 Beetham, 11.
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19
taken as such. Legitimacy is at bottom a normative, perhaps even moral, con-
cept.20 If a population generally supports the authorities, are they ipso facto
legitimate? Could it not be the case that the people are mistaken, deceived,
tricked, or bullied into compliance? If so, how are we to decide? How can we
distinguish between political authority that is legitimate de jure, and political
authority that merely purports to be so, and is perhaps de facto taken as such?
e given beliefs or attitudes of its subjects don’t seem to settle the question.21
If social scientists focus on the empirical ecacy of people’s taking the
authorities as legitimate (or illegitimate), philosophers usually aim to artic-
ulate the necessary and sucient conditions for it to really be legitimate, or
to have the “right to rule.” eir self- ascribed task is to determine the criteria
by which political authority ought to be judged, as opposed to the empirical
circumstances in which it is, in fact, accepted or not. As Robert Paul Wol
expresses this division of labor:
e study of the forms, characteristics, institutions, and functioning of de
facto states, as we may call them, is the province of political science. If we
take the term in its prescriptive signication, the state is a group of persons
who have the right to exercise supreme authority within a territory. e
discovery, analysis, and demonstration of the forms and principles of legiti-
mate authority— of the right to rule— is called political philosophy.22
Usually, the right to rule is conceived as a moral right and legitimacy a moral
property, although what that means is typically less than clear.23 Political phi-
losophy is then a kind of applied ethics. In the words of Robert Nozick:
20 “Of course, insofar as it is the positive attitudes and beliefs of subjects that reliably produce their
compliance with and support for states and regimes, . . . it is understandable that social scientists have
tended to focus on these attitudes and beliefs. For, as social scientists, we are rightly interested in
what produces compliance. . . . But we should not confuse these perfectly reasonable concerns with
the quite distinct concerns we have about the moral legitimacy of states or governments.” Simmons,
“Justication and Legitimacy,” 750. See also note 11.
21 Of course, one inuential tradition, consent theory, holds that acceptance by subjects is exactly
what confers legitimacy on political authority. But that raises the further question of the conditions
under which such consent is to be considered binding, and why one should take that to be the rele-
vant standard.
22 Wol, In Defense of Anarchism, 5. See also Simmons, Moral Principles and Political Obligations;
Flathman, “Legitimacy”; Copp, “e Idea of a Legitimate State,” 4; Christiano, “Authority”; Huemer,
e Problem of Political Authority; Buchanan, “Political Legitimacy and Democracy,” 689; Estlund,
Democratic Authority, 2; Green, e Authority of the State, 5.
23 A minority of theorists tries to justify principles of legitimacy prudentially or instrumentally
rather than morally. See Kühnelt, Political Legitimization w ithout Morality?
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Moral philosophy sets the background for, and boundaries of, political phi-
losophy. What persons may and may not do to one another limits what they
may do through the apparatus of a state, or do to establish such an appa-
ratus. e moral prohibitions it is permissible to enforce are the source of
whatever legitimacy the state’s fundamental coercive power has.24
eorists in this tradition have produced a wide array of competing views,
defending inter alia the consent of the people, democratic procedures, a
modicum of peace and stability, or respect for human rights as valid criteria
or conditions of legitimacy. It is not necessary to treat these accounts com-
prehensively here. What is crucial is how the question of legitimacy is framed
as a philosophical problem: a quest for the discovery of valid principles. It is
assumed that legitimacy is a problem that can be resolved, at least in theory,
by nding the correct standard. e task description for philosophy becomes
the mirror image of Weber’s purely empirical social science, aspiring to pro-
vide the authoritative, rationally grounded moral knowledge he took to be
impossible.
For lack of a better word, I will refer to this framing of the question of
legitimacy as calling for a resolution by appeal to the right principles, and
the associated task description of political philosophy as focused on nding
such principles, as “normativism.”25 “Moralism” is just one possible form
of normativism, which holds that such norms must be moral in character.
It is easy to see why this approach has wide appeal: it promises to resolve
the question of legitimacy by giving us a secure standard, a kind of knowl-
edge unencumbered by the relations of power that we seek to assess, which
provides critical leverage against the authorities we face.26 It helps us to speak
truth to power. Indeed, it seems to many philosophers obvious that this form
of knowledge— a set of determinate normative criteria— is just what we ask
24 Nozick, Anarchy, State, and Utopia, 6.
25 For a similar term of art (with wider extension), see Sluga, Politics and the Search for the
Common Good.
26 In case one thinks it is a caricature to cast moralists as aiming to resolve disagreement, the as-
piration is quite explicit in this recent defense of moralism: “In a purely normative sense of ‘resolve’,
a principle resolves a disagreement when it yields an answer as to which party or parties to the dis-
agreement (if any) are right [just any answer? the correct answer? an acceptable answer?— TF].
But this doesn’t entail that the disagreement is de facto ‘resolved,’ in the sense that there is actual
agreement that this answer is correct. Moralists claim that their principles resolve disagreement in
the normative, not the de facto, sense.” One may wonder how principles can have this normative
power apparently without even needing to be applied. Leader Maynard and Worsnip, “Is ere a
Distinctively Political Normativity?,” 769– 70.
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21
for when we raise a question of legitimacy. Just consider the apparent self-
evidence with which Nozick and Wol posit their denitions of the task of
political philosophy.
Judging legitimacy— distinguishing in practice whether a regime is le-
gitimate, or merely purports to be so— is at most an aerthought for
normativists. If theorizing legitimacy is all about the content and justica-
tion of principles of legitimacy, then judgment seems just to be a matter of
applying such principles to particular cases. If you nd yourself confronted
with a regime, and want to know whether it is legitimate, you need to appeal
to two distinct forms of knowledge: principles and facts about the case. ese
forms of knowledge are usually assumed to be independent: the former are to
be established by moral theory (a “theory of legitimacy”), the latter by empir-
ical enquiry. Take, for example, theories that posit express consent, rational
acceptability, or democratic procedures as the proper standard of legiti-
ma c y.27 Judging the legitimacy of a regime would then be a matter of deter-
mining whether its subjects consented to its rule; whether it met standards of
reasonableness;28 or whether it ruled democratically. To see this at work in a
nutshell, consider the following passage from John Simmons:
e proper grounds for claims of legitimacy concern the transactional
components of the specic relationship between individual and institution.
Because I subscribe to political voluntarism as the correct account of these
transactional grounds for legitimacy, and because I believe no actual states
satisfy the requirements of this voluntarism, I also believe that no existing
states are legitimate (simpliciter).29
Simmons’s judgment appeals to a factual claim about actual states, and a nor-
mative doctrine, “voluntarism,” which is the idea that individuals can be-
come bound by obligations only through an act of their own will. Judgment
takes the form of a subsumption of the former under the latter.
27 See, respectively, Simmons, “Justication and Legitimacy”; Nagel, Equality and Partiality;
Christiano, “e Authority of Democracy.”
28 We would have to know what those standards are, of course, and for Nagel, determining that
is precisely the crucial task for political theory: “e question is, what supplies the standard of rea-
sonable, morally permissible rejection which provides the true test of the legitimacy of a system, as
opposed to rejection based only on superior leverage and unmodied self- interest?” Nagel, Equality
and Partialit y, 39.
29 Simmons, “Justication and Legitimacy,” 769.
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is picture corresponds to a common but controversial view of judgment
in moral philosophy: to judge is to apply a general norm or principle to a
particular case (see Figure 1.1). As Immanuel Kant observed, norms never
simply dictate their application.30 If propriety lies in conformity with a rule,
and if a rule cannot dictate its own application, something else is required, in
addition to the rule and the facts about the case, to establish whether or not
an act is appropriate. at extra is the act of practical judgment. Judgment is
what bridges the gap between principles and concrete actions. Various moral
and legal philosophers have oered complex accounts of what norm appli-
cation involves, while others have called the whole picture into question,
criticizing the very idea that morality should be understood in terms of gen-
eral principles.31 But such disputes about judgment have not seeped into the
debate about political legitimacy.
Principle(s)
Facts about
case
Question of
legitimacy
Moral
theory
Empirical
enquiry
Judgment Action
Figure 1.1 e role of judgment implicit in moralist theories of political
legitimacy.
30 “[N] o matter how complete the theory may be, a middle term is required between theory and
practice, providing a link and a transition from one to the other. For a concept of the understanding,
which contains the general rule, must be supplemented by an act of judgment whereby the practitioner
distinguishes instances where the rule applies from those where it does not. And since rules cannot in
turn be provided on every occasion to direct the judgement in subsuming each instance under the pre-
vious rule (for this would involve an innite regress), theoreticians will be found who can never in all
their lives become practical, since they lack judgement.” Kant, “On the Common Saying,” 61.
31 e rst category includes Richardson, “Specifying Norms”; O’Neill, “Normativity and Practical
Judgement.” For the second, see, for example, McDowell, “Virtue and Reason”; Dancy, Ethics without
Principles; Lance and Little, “Defending Moral Particularism.” e complications of norm application
are also well known in legal theory, and scholars there see adjudication as much more complex than the
subsumption of a particular under a given rule. For example, Alexy, “On Balancing and Subsumption.”
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23
Five aspects of this picture are worth highlighting. First, judging is
construed as a subjective moment of decision, a conscious act of bringing
principles to bear on a case. As such, it precedes action in public. Because it
occurs in foro interno, the subject is sovereign over his or her judgment: its
content is determined solely by the subject’s will or intention. is equa-
tion of judgment and decision is commonplace, but it is not self- evident. In
Chapter 3, I contrast this with a non- sovereign view of judging as an ongoing
and intersubjective activity.
Second, for this act of judgment to begin, two forms of knowledge must be
treated as given: a theory of legitimacy (as conventionally understood) and a
factual understanding of the situation. ese must be on hand. is is not to
suggest that they must be certain or infallible, but as far as judgment is con-
cerned, they must be treated as settled: one must proceed as if the facts and
norms are given. e activities that issue in such knowledge are not them-
selves part of judging legitimacy: they are a matter of philosophical justica-
tion, where the norms are concerned, and of empirical enquiry to sort out the
facts, perhaps with the help of social science or journalism. In other words,
one must rst obtain the right normative standards and get a grip on the sit-
uation, then judge whether or not the authorities are legitimate. To be sure,
this view allows that theoretical justication and empirical enquiry involve
judgments of some sort, but it would a dierent kind of judgment. Onora
O’Neill expresses this clearly:
When we act we may as a preliminary matter have to decide how to view the
situation in which we already nd ourselves . . . : here reective judgement
may indeed be needed. But even when reective judging is completed, and
we have determined how to view the situation, we will still need to decide
what to do: and that is where practical judgement does its work.32
is sequencing makes it rather dicult to see how practical judgment can
get o the ground when we still face disagreement and uncertainty about the
relevant criteria and about key aspects of the situation, as is frequently the
case in situations where legitimacy is in question.
ird, the picture invokes a fairly strict separation of justication and ap-
plication, or theory and practice. It is true that application is oen seen to
32 O’Neill, “Normativity and Practical Judgement,” 402– 03. More in Chapter 3 about theories of
reective judgment, to which O’Neill refers here.
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have a role at the theoretical level as well, as when theorists try to come up
with examples and counterexamples in justifying or refuting certain prin-
ciples. Various approaches in moral philosophy deny that the content and
justication of principles are independent of their application. For instance,
Rawls’ “reective equilibrium” approach to justice involves a back- and- forth
between formulations of principles and considered judgments of concrete
cases.33 Still, while this results in a more complex and perhaps more con-
textual picture of the theoretical enterprise, it does not involve a rethinking
of what is involved in a practical encounter with authorities. e fact that
historical and hypothetical examples are usually seen as functioning just
as well for theoretical purposes is revealing. From a practical point of view,
judging legitimacy is just a matter of applying principles. is is what enables
Simmons, in the passage quoted above, to judge all states illegitimate in one
fell swoop.
e fourth point is closely related: this picture relies on the crucial as-
sumption that the content and justication of appropriate principles are
invariant across the dierences of perspective between a theoretical and a
practical context, let alone among situated subjects within such a context.
at is not to say that criteria are necessarily posited as universally valid— the
point holds also for contextualist theories, insofar as they construe the con-
tent and justication of principles as independent of their application, even if
valid only for a particular context (see Chapter 6, Section 6.2). Judgment so
conceived is impersonal and ahistorical, in the sense that it does not matter
who judges, where, and when, so long as the judging subject has knowl-
edge of the relevant state of aairs and valid principles. What is required for
judging legitimacy is epistemic access to the correct facts and principles, not
a concrete practical relation to the regime in question.
Finally, on this picture, the quality of judgments depends on the validity
of the norms, the truth of the facts, and a correct subsumption of the latter
under the former. Good judgment consists in a certain facility with theoret-
ical knowledge. In other words, judging well is understood in terms of getting
the propositional content right. Once we have resolved the question of cor-
rect criteria and have gathered the facts, all that’s le to do is to “apply” this
knowledge. While every good Kantian knows that that apparent ease is de-
ceptive, there appears to be little more that can be said about it theoretically.
33 Likewise, Miriam Ronzoni argues for the “incorporation of judgment within the construc-
tivist procedure that is meant to deliver normative principles.” Rawls, A eory of Justice; Ronzoni,
“Constructivism and Practical Reason,” 76.
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25
Perhaps not every normativist theorist of legitimacy would endorse all
aspects of this picture, if asked. Still, unless they provide an alternative view
of what judging involves, it is reasonable to treat them as implicitly com-
mitted to this view of judgment and its presuppositions. If you think that
the question of legitimacy is a practical problem that political subjects face
in real- life situations, and that a theory of legitimacy is supposed to respond
in some way to this predicament, and if that theory is essentially concerned
with identifying the correct criteria, then apparently judging legitimacy in
practice amounts to nothing more than somehow bringing such a theory to
bear on particular cases.34 Normativism (as a task description for a theory
of legitimacy) and this conception of judgment (as norm application) be-
long together by default.35 Of course, one could maintain that a theory of
legitimacy need not be practical in this way, and argue that moral principles
captured by a theory of legitimacy may articulate meaningful moral truths,
even if they do not immediately issue practical judgments. But it is hard
to see what “political legitimacy” means, or what philosophical problem it
names, in abstraction from a political predicament that subjects encounter
in practice.36
1.4 Political realism as a form of normativism
Political realists reject what they call “ethics- rst” approaches to political
theory and the “priority of morality to politics,” denying that we can treat
morality as the given starting point for political thinking.37 A preoccupa-
tion with moral knowledge comes at the cost of understanding political
phenomena. However, realists’ opposition to moralism does not automati-
cally translate into an alternative to normativism. Indeed, recent proposals
34 Arthur Applbaum’s recent view ts this mold perfectly. He takes it that “we should take questions
about political legitimacy to be primarily practical queries about what to do, rather than theoretical
queries about what to believe,” and his aim is to establish, by moral argument, the correct answers to
such questions. Applbaum, Legitimacy, 142.
35 David Copp explicit defends the view that normative judgment is a matter of applying a given
standards, albeit in a dierent context from his view of legitimacy. Copp, Morality, Normativity, and
Society; Copp, “e Idea of a Legitimate State.”
36 David Estlund, for example, has argued that a theory of legitimacy could still describe the moral
truth about a regime, even if people cannot bring themselves to recognize it. Estlund, “Utopophobia.”
However, our question here is not about people’s motivations for adopting certain principles, but
whether judging legitimacy appropriately is well understood as a matter of applying principles.
37 Geuss, Philosophy and Real Politics; Williams, In the Beginning Was the Deed. See also Hall and
Sleat, “Ethics, Morality and the Case for Realist Political eory.”
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for rethinking political legitimacy under the banner of realism typically
exhibit essentially the same picture of what a theory of legitimacy is sup-
posed to provide, except that they hold that the principles must be dis-
tinctively political in character. Much debate concerns what exactly makes
norms “moral” or “political,” but the details do not concern us here.38 e
key point is that realists have tried to specify “more realistic criteria for
legitimacy.”39 For some realists, a standard is taken to be more realistic if
it sets a low bar, which is relatively easily met by a regime.40 For others,
criteria must be sensitive to the historical context.41 Yet another view is that
relevant criteria must have their source “within” politics rather than “out-
side” it, for instance, by referring to the point and purpose of the political
practice at stake.42
Insofar as these are the terms in which they frame the question of legit-
imacy, realists do not fundamentally call normativism into question (see
Figure 1.2).43 eorizing legitimacy is still conceived as a normative codica-
tion project. e scope of the salient criteria may be understood to be rather
narrow, or the bar may be set rather low, but the task of political philosophy
remains to discover a distinctive form of theoretical knowledge— the content
and justication of principles and criteria, however context- dependent. ere
is no reason in principle, I think, why a realist should nd this job description
particularly attractive, given the rejection of moralism and an orientation to-
ward political understanding— unless one simply takes for granted a view
of judgment as a matter of applying given standards to the facts at hand.44
Indeed, Glen Newey regarded such a normative approach to political philos-
ophy as “unduly narrow and [having] a constricted sense of its possibilities.”45
38 See Erman and Möller, “Political Legitimacy in the Real Normative World”; Leader Maynard
and Worsnip, “Is ere a Distinctively Political Normativity?”; Jubb, “On What a Distinctively
Political Normativity Is”; Sleat, “Realism and Political Normativity.”
39 Sleat, “Legitimacy in Realist ought,” 315. Hence, John Horton’s suspicion is apropos: To what
extent does the realist project really dier from that from which it sets itself apart? Horton, “Realism,
Liberal Moralism and a Political eory of Modus Vivendi,” 445– 46.
40 Horton, “Realism, Liberal Moralism and a Political eory of Modus Vivendi.”
41 Williams, In the Beginning Was the Deed.
42 Rossi, “Justice, Legitimacy and (Normative) Authority for Political Realists”; Cozzaglio and
Greene, “Can Power Be Self- Legitimating?”
43 For critical discussion of these proposals, see Erman and Möller, “Political Legitimacy for Our
World”; Wendt, “On Realist Legitimacy.”
44 us, Ilaria Cozzaglio and Amanda Greene remain in the grip of the dichotomy between “nor-
mative” and “descriptive” enquiry when they suggest that “political realists need to identify principles
of evaluation that go beyond a description of politics. Otherwise, the endeavor would be an exercise
in empirical social science rather than a normative theory of politics.” Cozzaglio and Greene, “Can
Power Be Self- L egitimating?,” 1017.
45 Newey, Aer Politics, 34.
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27
Still, while the realist literature does oer intimations of a more radical
rethinking of political legitimacy, this has not been systematically pursued.
e reception of Bernard Williams’s reections on political legitimacy is
instructive in this regard. In search of an alternative to moralistic conceptions
of legitimacy, Williams insists that what matters crucially for legitimacy is
whether rule “makes sense” to those subjected to it, where what makes sense
is understood not from a moral standpoint that all must rationally accept,
but in terms of their actual normative expectations. According to Williams,
historically contingent circumstances have made it so that “liberalism,” un-
derstood in some broad sense, informs what makes sense “now and around
here,” but that does not mean liberal principles should be elevated to the
status of universally valid criteria that every regime ought to meet. What
counts as an acceptable response to the question of legitimacy (or the “Basic
Legitimation Demand,” as Williams calls it) crucially depends on who is
subjected (when and where), not in terms of their essential constitution as
human beings, as rational agents, or as social animals, but in terms of who
they contingently and rst- personally take themselves to be, and the specic
beliefs and expectations in relation to the regime that characterize them. Put
dierently, the question of legitimacy is rst and foremost a question of what
Principle(s)
Facts about
case
Question of
legitimacy
Moral
theory
Political
theory
Empirical
enquiry
Judgment Action
Figure 1.2 Realists’ accounts of legitimacy leave intact the structure of the
normativist view.
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one can live with, given the historically specic self- conception one nds
oneself with.46
Williams did not esh out the idea much further than this. Working out in
more depth what “making sense” might mean in connection to the question
of legitimacy could point in the direction of a dierent way of thinking about
the problem (in fact, this would be a good way of describing the project of
this book). But realists who draw on Williams have thus far been more con-
cerned with whether Williams provides us with a nonmoralistic standard of
legitimacy than with examining the activity of making sense.47
John Horton and Matt Sleat in particular have drawn on Williams to pro-
pose what they regard as realistic criteria of legitimacy. In their view, a re-
gime is legitimate to the extent that the normative commitments embodied
in the regime are “congruent” with the commitments (or beliefs, attitudes,
and values) endorsed by those subjected to it— essentially the view we saw
earlier in Beetham.48 What does judging legitimacy consist in, on this view?
Sleat is explicit about this: “Judgements about the legitimacy of a political
order, or the use of political power, are assessments of the degree of congru-
ence, or lack of it, between that order and the beliefs, values and normative
expectations that its subjects have of political authority.”49 Of course, the
governed are quite likely to disagree about that in struggles for legitimacy.
But the criterion does not presuppose that there is a single, unambiguous an-
swer to what subjects regard as legitimate. Sleat and Horton rather conclude
from this that legitimacy is a matter of degree, and that a regime is never per-
fectly legitimate. Getting a sense of the views that predominate in a particular
context (and thus of the standards that the regime should meet) is a dicult
46 e “rst political question” is not therefore, as Williams seems to suggest, a matter of establishing
order and stability but of asking what kind of order one can live with. See Fossen, “Modus Vivendi
Beyond the Social Contract.”
47 For example, Bavister- Gould, “Bernard Williams,” 594; Cozzaglio and Greene, “Can Power Be
Self- Legitimating?” Whether Williams would go along with this is questionable. Edward Hall plau-
sibly suggests that “the primary purpose of Williams’ account is not to provide an alternative (albeit
minimal) set of principles that ground a state’s right to rule, but to enable us to understand the nature
of politics itself.” Hall, “Bernard Williams and the Basic Legitimation Demand: A Defence,” 469.
48 Horton, “Realism, Liberal Moralism and a Political eory of Modus Vivendi,”
141: “Fundamentally, it is about the acknowledgement of state as having authority . . . in terms that
are taken to be salient within the context in which such authority is exercised and armed.” Sleat,
“Legitimacy in Realist ought,” 325: “What matters is that the political order makes sense as a form
of legitimate authority in relation to the beliefs (moral, political, social, economic, etc.) of those who
are subject to it, that it conforms to people’s values and standards, and that it meets the normative ex-
pectations that we have of it.”
49 Sleat, “Legitimacy in Realist ought,” 326.
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29
interpretative exercise and there is no presumption that any resulting inter-
pretation will be without remainder.
e congruence principle is obviously highly sensitive to the contingent
ways in which subjects think of themselves and their political situation. In
this way, Horton and Sleat mean to avoid treating morality as a given prior
to politics, while nonetheless gaining some critical purchase on regimes,
although that critical purchase must be worked out in concrete cases in a
manner that is highly contextual. Still, this does not fundamentally alter
the normativist picture. e content of judgments of legitimacy that result
from applying the congruence principle is highly sensitive to context since
the principle makes reference to the beliefs and values of those subjected to
power. But the form of judgment remains impersonal and ahistorical: it does
not matter who does the judging, where and when, as long as one has norma-
tive knowledge the correct standard (congruence, on this proposal) and ep-
istemic access to the facts at hand (the views of the subjected and the actions
of the regime).
Aside from this structural similarity to the moralist views it seeks to avoid,
the congruence view faces the same problem that we encountered when
discussing Beetham: it abstracts from the practical point of view. It would be
odd to say that people take dierent views about the legitimacy of a regime
because they disagree about which beliefs and values are prevalent in society,
rather than because they themselves hold dierent beliefs and values. From a
practical standpoint, making a legitimacy claim involves committing one-
self, taking a stance toward the regime. Measuring congruence involves just
the opposite: to avoid bias and distortion, one must bracket one’s own nor-
mative expectations and substitute those of the governed. Taking a practical
stance toward a regime and measuring congruence involve very dierent
ways of relating to oneself and to others. Confusion is bound to result.
In short, recent realist accounts of legitimacy still cast judgment as a mo-
ment of decision in which theoretically articulated norms are brought to bear
on the given facts of a particular situation. Such theories all make the same
move of abstraction, a move astutely diagnosed by Raymond Geuss: they ab-
stract the propositional content of political judgments from the practical sit-
uation that calls them forth— with its characteristic historical background,
relations of power, and plurality of agents:
It is not false to think of a political judgment as a belief, but it is an abstrac-
tion, an articial isolation of one element or component or aspect from a
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wider nexus of actions and action- related attitudes, habits, and institutional
arrangements, within which alone the judgment (nally) makes sense.50
As a characterization of normativism, whether moralist or realist, this is spot
on. And it points in the direction of a dierent way of thinking about legit-
imacy, perhaps more true to the realist spirit, which tries to comprehend
judging legitimacy as a situated activity.51
1.5 Principles of legitimacy in Rawls and Habermas
Nothing I have said refutes the normativist picture of judgment and the con-
comitant task description for a theory of legitimacy as a codication project.
Its limitations will become much clearer in Part II. In this chapter, I merely
want to point out the prevalence of this way of approaching political legiti-
macy and to show that what is oen taken for granted is, in fact, a conten-
tious framing of the problem. One way to call its apparent self- evidence into
question is to take a closer look at the principles of legitimacy oered by two
giants of twentieth- century political philosophy: John Rawls and Jürgen
Habermas. While they are oen considered prime exponents of moralism
and gure as the butt of realist critiques, that framing of their position in
the landscape obscures both the distinctiveness and the limitations of their
work in connection with political legitimacy. Engaging with Rawls and
Habermas will help us to open up a dierent set of questions for a theory of
political legitimacy to answer. It will also help to counter the perception that
all attempts to articulate principles are by denition a quest for knowledge to
solve the question of legitimacy.
In my view, Rawls and Habermas operate with a more complex under-
standing of what judging political legitimacy involves, but this view remains
largely implicit in their work. Contrary to how it may appear, neither Rawls
nor Habermas purports to oer a philosophical solution to the question of
legitimacy, as staged at the outset— the question of how to relate practically
to the regime with which one nds oneself confronted. Although they un-
deniably proer normative standards of legitimacy, these principles do not
purport to govern our basic stance toward a regime, but rather to provide
50 Geuss, “Political Judgment in Its Historical Context,” 8.
51 For another realist take on judgment, though not in the context of a theory of legitimacy, see
Philp, “What Is to Be Done?”; Bourke, “eor y and Practice.”
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31
immanent criteria for evaluating institutions, laws, or decisions in the con-
text of a specic form of regime. With regard to the legitimacy of the regime
as such, these principles are expressive rather than adjudicative: against the
background of a constitutional- democratic regime, they claim to express
what it would mean for that regime to live up to its own expectations, and
ours, qua citizens.
To see this, it is crucial to recognize that the problems at the heart of Rawls’s
and Habermas’s political theories are subtly but importantly dierent from
the question of legitimacy as considered here. e aim of Rawls’s theory of
justice as fairness— at least as presented in Political Liberalism— is to spell out
the fair terms of cooperation among free and equal citizens, by articulating
a set of principles that all citizens can reasonably accept despite profound
disagreements, and that they can use to evaluate institutions and guide
reforms. Habermas’s project in his most systematic political work, Between
Facts and Norms, is to explicate the normative core of constitutional democ-
racy. is similarly provides a critical standard for evaluating the democratic
credentials of political processes and a horizon for their improvement.
Habermas and (more tangentially) Rawls frame this as a matter of legiti-
macy, and each articulates a principle to address it. But one has to consider
carefully the questions to which these principles of legitimacy are meant to
respond. Rawls and Habermas do not ask, as moralists do, in the abstract
“what renders political authority morally acceptable?”52 e point of these
criteria is not to provide a criterion that enables one to determine whether
a regime as such is legitimate or illegitimate, but to articulate what it means
to see ourselves as free and equal citizens in the context of a constitutional
democratic regime. Given that we nd ourselves in a certain kind of regime
(constitutional democracy), how is power properly exercised, or law legit-
imately made? eir principles express the liberal (Rawls) or democratic
(Habermas) legitimacy of laws, policies, or institutions against the back-
ground of a constitutional democratic regime, the fundamental legitimacy of
which is already granted once we get to consider these principles. A theory of
liberal or democratic legitimacy is not eo ipso a theory of political legitimacy
in the sense that concerns us here.53
52 Cf. Sleat, “Coercing Non- Liberal Persons: Considerations on a More Realistic Liberalism,” 351.
53 Pace Christopher Meckstroth, who oers a sophisticated theory of what is involved in judging
when a law or a reform appropriately counts as democratic, but not as such, I think, an account of
judging political legitimacy. See Meckstroth, e Struggle for Democracy: Paradoxes of Progress and
the Politics of Change.
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Habermas’s democratic principle says that “only those statutes may claim
legitimacy that can meet with the assent (Zustimmung) of all citizens in a dis-
cursive process of legislation that in turn has been legally constituted.”54 He
notes immediately that the principle “explains the performative meaning of
the practice of self- determination on the part of legal consociates who rec-
ognize one another as free and equal members of an association they have
joined voluntarily.”55 In other words, the principle articulates the meaning
of a practice from the standpoint of its participants; it does not explain the
legitimacy of that practice to those unwilling or unable to see themselves as
such.56
Similarly, Rawls takes himself to be interpreting in a coherent and sys-
tematic way the basic moral and political commitments that he claims to
nd “implicit in the public political culture of a democratic society,” that is
to say, in “the political institutions of a constitutional regime and the public
traditions of their interpretation. . . , as well as historic texts and documents
that are common knowledge.”57 In this context, Rawls formulates the “liberal
principle of legitimacy” thus: “Our exercise of political power is fully proper
only when it is exercised in accordance with a constitution the essentials of
which all citizens as free and equal may reasonably be expected to endorse
in the light of principles and ideals acceptable to their common human
r e a s o n .” 58
e posture that Rawls and Habermas adopt, and invite the reader to take
as well, is that of a fellow democratic citizen. ey appeal not to the truth
of some moral doctrine but only to an immanent account of what that pos-
ture entails. It follows that the act applying these principles is neither imper-
sonal nor ahistorical; it makes sense only from the standpoint of a citizen. As
Anthony Laden has put this point, for both thinkers “doing political philos-
ophy within and for a democratic society requires abandoning the perspective
of the theorist favored by utilitarians and many other political philosophers
54 Habermas, Between Facts and Norms, 110.
55 Habermas, 110.
56 A more in- depth analysis of Habermas’s theory of legitimacy can be found in Fossen, “Judgment
and Imagination in Habermas’ eory of Law.”
57 Rawls, Political Liberalism, 13– 14.
58 Rawls, 137. For an illuminating in- depth reconstruction of Rawls’s changing views of political
legitimacy, see Langvatn, “Rawls on Political Legitimacy.” Silje Langvatn observes (among other
things) that, while Rawls’s understanding of political legitimacy shis throughout his career, he al-
ways tries to account for it against the background of a constitutional democratic regime (p. 136).
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33
and adopting the perspective of the citizen.”59 Nuanced dierences between
them aside, Rawls and Habermas share this basic orientation of political
thinking.
e upshot is that in these theories the role of principles of legitimacy with
respect to the political order as such (as opposed to particular institutions,
laws, or decisions within that order) is expressive rather than adjudicative.
If the question of legitimacy, at bottom, is how to relate practically to the re-
gime with which one nds oneself confronted, here that question is recast
more narrowly and specically in terms of how to relate as free and equal cit-
izens to each other and to the practice of collective self- government in which
we, in their view, nd ourselves engaged. Rawls’s and Habermas’s principles
of legitimacy do not explicitly address the question of legitimacy at a deeper
level than this. ey do not feel a need to, I think, in large part because they
assume that doing so could only involve an appeal to moral truth, and they
recognize that politically we cannot treat morality as given.60 But the ques-
tion of legitimacy does cut deeper, for nothing guarantees— certainly not the
principles proposed by Habermas and Rawls (as they would acknowledge)—
that the presuppositions of this starting point cannot be called into question,
both philosophically and politically. Insofar as a principle is expressive of
what legitimacy requires within a particular type of order, it cannot deter-
mine the legitimacy of that order as such.
If one wants to think through the question of legitimacy, the problem with
Habermas and Rawls is that their accounts of legitimacy bear on the issue in
a way that is too dependent on the context of a constitutional democratic re-
gime, and therefore fails to get to the bottom of the political problem. It is one
thing to proceed theoretically from the stance of a citizen qua self- governing
citizen, and another from that of a perplexed subject trying to grasp what is
going on. More pertinently, these accounts do not speak at all to those not so
59 Laden, “Taking the Distinction between Persons Seriously,” 289. For related interpretations of
Rawls’s approach to political philosophy, to which I am indebted, see James, “Constructing Justice for
Existing Practice”; Gledhill, “Rawls and Realism”; Jubb, “Playing Kant at the Court of King Arthur.”
60 Rawls may be taken to espouse a moralized principle of legitimacy in his discussion of civil
disobedience and the natural duty to support more or less (but not fully) just institutions. Rawls,
A eory of Justice, 293. e most Habermas provides in response to this issue is this considera-
tion: “Philosophy makes unnecessary work for itself when it seeks to demonstrate that it is not simply
functionally recommended but also morally required that we organize our common life by means
of positive law, and thus that we form legal communities. e philosopher should be satised with
the insight that in complex societies, law is the only medium in which it is possible reliably to estab-
lish morally obligated relationships of mutual respect even among strangers.” Habermas, Between
Facts and Norms, 460. Karl- Otto Apel challenges Habermas on precisely this point in “Regarding the
Relationship of Morality, Law and Democracy.”
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fortunate as to nd themselves able to adopt this posture to begin with. e
point here is not to demand a more fundamental principle of legitimacy, but
to ask for an adequate diagnosis of the problem that Rawls and Habermas
leave implicit.
1.6 Toward a pragmatist approach to political legitimacy
What could a non- normativistic approach to political legitimacy look like?
None of the approaches discussed so far oers an explicit and systematic ac-
count of what is involved in judging the legitimacy of a regime from a prac-
tical standpoint, and what is involved in doing that well. Raising this question
opens room for a dierent mode of engaging philosophically with the ques-
tion of legitimacy, which we could label “pragmatist.”61 As I see it, the distinc-
tiveness of a pragmatist approach lies in reversing the direction of enquiry.
Instead of treating judgment as an aerthought, we make it our central theo-
retical concern. Instead of starting by determining the content and justica-
tion of principles, and then enquiring how those principles might be applied
in practice, a pragmatist approach starts by accounting for the activity of
judging legitimacy. It inquires what it is we are doing in asking whether a re-
gime is legitimate or not, seeking to make explicit how the question of legit-
imacy presents itself and engages us in practice. What are the conditions in
which this predicament presents itself as a real- life, practical problem? What
must one know, and what can one do, in order to distinguish whether the
authorities with which one nds oneself confronted are legitimate, or merely
purport to be so?
We can get a preliminary sense of what this could mean concretely by
extending our examination of Rawls and Habermas. e previous section
suggested that those who are in a position to apply their principles of legiti-
macy have already adopted a citizen standpoint and take the basic legitimacy
of constitutional democracy for granted. is presumes that much political
work has already been achieved. Insofar as the legitimacy of the regime as
such is concerned, judgment has to a considerable degree already happened
before these liberal democratic principles enter the picture. But if we are
61 Alternative labels could work just as well. e approach I am sketching is akin to what Hans
Sluga proposes to call a ‘diagnostic practice’ and John Horton ‘interpretive realism.’ Sluga, Politics
and the Search for the Common Good; Horton, “What Might It Mean for Political eory to Be More
‘Realistic’?”; cf. Prinz, “Realism and Real Politics.”
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35
interested in rethinking what judging legitimacy involves, this could oer
a clue. Perhaps, in putting forward these principles, Rawls and Habermas
enact a dierent mode of engaging with the question of legitimacy, one
which reveals, by showing rather than telling, something of what is involved
in judging legitimacy. What sort of activity or activities are they engaging in,
in proering their principles?
Consider more closely the passage that leads up to Rawls’s formulation of
the liberal principle of legitimacy:
e background of this question [about the legitimacy of the constitution
in a democratic regime— TF] is that, as always, we view citizens as reason-
able and rational, as well as free and equal, and we also view the diversity of
reasonable religious, philosophical, and moral doctrines found in demo-
cratic societies as a permanent feature of their public culture. Granting this,
and seeing political power as the power of citizens as a collective body, we
ask: when is that power appropriately exercised? at is, in the light of what
principles and ideals must we, as free and equal citizens, be able to view
ourselves as exercising that power if our exercise of it is to be justiable to
other citizens and to respect their being reasonable and rational?62
is is the question to which the liberal principle of legitimacy responds.
Notice how much work is required to set the stage: we are asked to view
others and ourselves as free and equal citizens; to see political power as “the
power of citizens as a collective body”; and to regard diversity— the “fact of
reasonable pluralism”— as a permanent xture of our historically given situ-
ation.63 Only then can we see the problem as Rawls does (namely: How is fair
cooperation possible despite profound disagreement?), and can the liberal
principle of legitimacy enter the scene to help address it.
is specic framing, much more than the liberal principle itself, is where
we see Rawls’s response to the question of legitimacy. Rawls deliberately
represents power in a specic way, expresses a sense of who we are, and oers
us a historically situated sense of our present. Crucially, though, this framing
62 Rawls, Political Liberalism, 136– 37.
63 “History tells of a plurality of not unreasonable comprehensive doctrines” Rawls, Political
Liberalism, 140. Jan- Werner Müller argues: “In his work Rawls oen asks us to conceive of citizens as
legislators or as judges. Yet . . . in an important sense, they also have to be (at least amateur) historians
and carriers of liberal memory.” Müller, “Rawls, Historian,” 336.
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is not rendered thematic by Rawls as part and parcel to his account of legiti-
macy, but is presented as prior to it.
It would not be right exactly to say that Rawls and Habermas simply take
for granted that the addressees of their theories are already willing and able
to see themselves as citizens engaged in collective self- rule, even though the
criteria they oer have their point only insofar as they do. at would miss the
hortative dimension of their theorizing. ey adopt the standpoint of a self-
governing citizen not because they are sure that constitutional democracy
has already been achieved, but because they believe it can only be realized
if we collectively take up the standpoint they exhibit— however imperfectly
the regime may presently live up to its ideals. I have argued elsewhere that
implicit in the performative upshot of Habermas’s theory of democratic le-
gitimacy is a view of judgment as a practice of world building, a view that
is otherwise associated much more with Hannah Arendt.64 Habermas can
be understood as inviting us to imagine our political world in such a way
that, if we accept his invitation, we keep alive the promise of democratic self-
government. “Rational reconstruction” in this context means re- construction
as much as re- construction.65
Something similar can be said of Rawls. By showing that if we bring our-
selves to see each other as free and equal citizens of a constitutional democ-
racy, then there is a coherent way of addressing our political problems fairly,
Rawls invites us to indeed conceive of ourselves thus.66 Performatively,
theorizing from the citizen standpoint can be understood not just as a defen-
sive move— renouncing the philosopher- king’s throne and ceding the moral
high ground— but also as oensive. It encourages those who are reluctant
to see themselves as self- governing citizens to overcome their scruples and
enter the forum.
e key point, for now, is this. As we have seen, three acts of stage set-
ting precede Rawls’s formulation of the liberal principle of legitimacy: Rawls
64 For the latter, see Zerilli, A Democratic eory of Judgment.
65 Fossen, “Judgment and Imagination in Habermas’ eory of Law.”
66 As Laden makes this point: “Very roughly, citizens in a pluralistic society might come to doubt
whether a constitutional democratic regime is possible given that citizens can not be brought to agree
on fundamental matters without the use of oppressive force. Faced with such a crisis of faith, we
may nd ourselves unable to muster the commitments and eorts at compromise and self- sacrice
necessary to make such a pluralistic democracy work. So this lack of faith is a political, not merely a
philosophical, problem. Nevertheless, a large part of its solution lies within the conceptual domain of
philosophy, insofar as our faith can be restored by a philosophical demonstration of the conceptual
coherence of a pluralistic democracy. Rawls describes this role for philosophy as ‘philosophy as de-
fense.’ ” Laden, “Taking the Distinction between Persons Seriously,” 292.
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37
invites his readers to see themselves as a body of free and equal citizens, and
to view the regime with which they nd themselves confronted as an expres-
sion of their own, collectively shared power. And he situates this in a narra-
tive according to which pluralism is the inescapable historical condition in
which we nd ourselves. If my interpretation of the intended performative
upshot of his theorizing is correct, then Rawls is here not merely stating what
he takes as uncontroversial assumptions we (his readers) must already share.
Rather, these acts of stage setting are political acts that we are asked to carry
through, and our willingness or refusal to do so shapes our stance toward the
regime.
Now, what if we think of these acts of stage setting as acts of judgment?
Perhaps it is precisely these kinds of political activity that constitute what
judging the legitimacy of a regime consists in. at would mean that, in
making these remarks, Rawls is not just setting the stage, preparing the
ground for a moment of judgment in which a principle is applied. ese ap-
parently antecedent moments would, in fact, be at the heart of judgment.
One’s grasp of who one is in relation to the authorities, what the regime is
like, and one’s sense of history— these are not given prior to judgment, but at
stake in it (see Figure 1.3).
is opens up new terrain for a theory of political legitimacy. e question
of legitimacy would then not appear as a problem that calls for theoretical so-
lution, but for philosophical explication and practical engagement. eorists
of legitimacy have not so far provided a systematic account of how and why
the activities in which Rawls engages here— portraying power, articulating
Question of
legitimacy
Judgmental practices
Action
Narrating events
Representing power
Identication
Figure 1.3 Provisional sketch of a picture of judgment as a set of world-
shaping activities. Rawls’s acts of stage setting are here regarded as constitutive
dimensions of judgment.
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identity, and narrating history— bear on the question of legitimacy, and what
is involved in performing them in better and worse ways. e question is not
just what one ought to know, but also what one can do to address the ques-
tion of legitimacy aptly. e challenge of explicating such forms of activity
does not appear on the horizon of a theory of legitimacy if one frames the
task for such a theory from the very start as a quest for knowledge of norma-
tive principles.
How much room would such a practice- oriented approach to legitimacy
leave for traditional normative theories? To what extent do the activities that
constitute judgment aord or resist normative codication? Would pragma-
tism just make explicit what normativist theories of legitimacy are already
doing? Or, would it have revisionary implications, bringing out unacknowl-
edged limitations of such theories and new possibilities for thinking about
the problem? e answers really depend on further investigation— on a con-
crete philosophical account of the practical encounter between subject and
authority.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0003
2
Rethinking Legitimacy
2.1 Introduction
“[E] very system of rule attempts to establish and to cultivate the belief in its
legitimacy,” Max Weber famously stated.1 Rephrasing slightly, we might say
that authorities make a claim of legitimacy, and encourage and expect their
subjects to recognize that claim. But what is it that is being claimed, or that
authorities want us to believe in? What is it for a regime to really be legiti-
mate, as opposed to merely purporting to be so, or being taken as such? In
short: What is political legitimacy?
How might one approach this question? Let me start by schematically dis-
tinguishing two broad strategies for developing a philosophical account of
some concept.2 One approach begins with the assumption that there is a phe-
nomenon in the world that the concept is supposed to refer to, and tries to
articulate the necessary and sucient conditions for something to be that,
rather than something else. One can then use that account to explain how
the concept is used correctly in practice. Call this a metaphysical approach
because it aims to identify the content of the concept— what it means, un-
derstood (on this approach) in terms of its correspondence to some given
object— and deploys that to explain its use.
A pragmatic approach inverts the direction of enquiry: it tries to account
for the meaning of a concept on the basis of its practical use. Starting from
the observation that the concept at issue is deployed and disputed in prac-
tice, it tries to articulate what the phenomenon in question is on the basis
of an account of what one does in taking something as such and claiming
1 Weber, Economy and Society, 1:213.
2 My distinction between these strategies roughly follows the characterizations proposed in
slightly dierent terms by Mark Lance and Heath White and by Joel Anderson. Lance and White
say that metaphysical approach (to personhood) “begins by asking what a person, or agent, or sub-
ject is, perhaps by attempting to supply necessary and sucient conditions.” In contrast, on a “neo-
pragmatist” approach, as Anderson puts it, “the analysis of the concept makes essential reference to
a way in which individuals engage with each other from a second- personal standpoint.” Lance and
White, “Stereoscopic Vision,” 2– 4; Anderson, “Disputing Autonomy,” 18.
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that it is so. On the pragmatist assumption (associated especially with the
later Wittgenstein) that the meaning of a concept can be understood in terms
of its use, it makes sense to try to derive a denition of a concept (what it
means) from an account of the role the concept plays in practice. In this way,
one avoids having to make prior assumptions about the essential features of
the phenomenon in question.
Philosophical theories of political legitimacy usually operate in the meta-
physical mode. ey answer the question of what it means for a regime to be
legitimate by proposing a denition of political legitimacy as, say, “the right
to rule.” is right is then interpreted as a moral (or otherwise normative)
property that political authorities have or lack in relation to their subjects.3
For a regime to truly be legitimate is for it to satisfy the necessary and su-
cient conditions for having this right. Taking something as legitimate is then
a matter of believing, correctly or incorrectly, that it has this property, and the
correctness of such a belief would depend on there being a fact of the matter
to which this belief corresponds. is approach is metaphysical in the sense
that our understanding of what it is to take or treat something as legitimate is
dependent on a prior understanding of the nature of legitimacy as a distinc-
tive moral property, and we can explain what makes such judgments correct
if we know the necessary and sucient conditions for the property to exist.
Notice what this framing commits us to and where it draws our atten-
tion. e key philosophical issues appear to be, rst, to nd the “sources” or
“grounds” of legitimacy, to explain what “makes” a regime legitimate; and,
second, to identify its practical implications— for example, whether or not
its existence entails a duty to obey on the part of subjects.4 Once we know
these things, we can presumably apply this knowledge to recognize in con-
crete cases whether a regime is legitimate or not, and whether its subjects are
bound to obey. So this framing naturally leads us to see a theory of legitimacy
as a codication project (Chapter 1). Moreover, such an account of what it
means to be legitimate (as possession of a property) makes no reference to
any standpoint from which legitimacy is judged. It draws attention away
3 Arthur Applbaum stresses that legitimacy is a “a relational property that characterizes the nor-
mative connections among rulers, enforcers, subjects, and intervenors, rather than a monadic prop-
erty, an attribute that something can have on its own, the way that a particle has the property of mass.”
Applbaum, Legitimacy, 142– 43.
4 As Fabienne Peter recently expressed this common sense in the literature: “A conception of po-
litical legitimacy oers an account of the conditions that must be met for political decisions to have
the property of legitimacy. . . . e question, then, is this: in virtue of what do some political decisions
have the normative property of legitimacy?” Peter, “e Grounds of Political Legitimacy,” 373.
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41
from the ways in which it is practically attributed and disputed. e apparent
assumption is either that those moral conditions are independent of anyone’s
perspective, or that the perspective is one that we (the addressees of the
theory) can be assumed to already share and therefore needs no mentioning.
Yet morality is deeply contested territory, both as to its nature and its con-
tent. It is not at all evident what a moral property is, whether there are any,
and how they can be known. Our grasp of the problem of political legitimacy
thus becomes hostage to moral philosophy. To avoid such controversies,
Weber wanted social scientists to abstract from the truth of beliefs in legiti-
macy and focus just on describing and explaining what people think and do
from the standpoint of an observer (as we have seen in Chapter 1). But that is,
in eect, to give up on the ambition of illuminating how the question appears
from a practical point of view. So it seems we are caught in a bind between
normativism and descriptivism: we must either try to settle philosophically
what is legitimate (de jure) by codifying normative standards, or otherwise
abstain from examining legitimacy as a practical problem and just focus on
what is taken to be legitimate (de facto).
In this chapter, I pursue a pragmatic strategy for conceptualizing polit-
ical legitimacy. Legitimacy is a status that authorities claim for themselves,
and that critics can deny them— and to gure out what legitimacy means we
should explain what they are doing in claiming it. So we focus in the rst
instance not on what we say when we claim that authority is legitimate or
illegitimate— on the content of legitimacy claims— but on what we do in
claiming it— on their use. is makes conceptual room for thinking about
political legitimacy in ways that do not simply take morality for granted and
that keep dierences of practical context and perspective in view from the
start.5
Of course, a pragmatic approach has its own commitments, in this case
drawing on a contestable view of language. Specically, my attempt to ex-
plain what it means for something to be legitimate in terms of what one
does in taking- something- as- legitimate exploits a basic insight of pragma-
tist philosophy of language: meaning should be understood in terms of use.
Robert Brandom’s notion of discursive practice as “deontic scorekeeping”
gives us a theoretical vocabulary to articulate what it is to explicitly claim that
5 e analysis at this stage is not morally skeptical but agnostic. Morality is not essential to
conceptualizing political legitimacy, but it can be brought into view at another stage, specically in
addressing, from a practical standpoint, the question of who one is (which is central to Chapter 5).
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something is legitimate in term of what it is to implicitly take it to be so— and
then to argue that this is all there is to what it means to be legitimate.6 I will
just assume this pragmatist view of meaning rather than defend it. But given
the predominance of the metaphysical mode of conceptualizing political le-
gitimacy just sketched, this at least enables us to approach the issue from a
dierent angle.
e analysis proceeds in four steps. First, I propose a conception of poli-
tics. Because the term “legitimacy” has uses in a wide range of practices, po-
litical and otherwise, our rst task is to provide a conception of the specic
type of practical context that is at issue here: the encounter between subject
and authority. I characterize politics as a practice of stance taking toward rule.
e second step is to explain what one does in explicitly claiming legiti-
macy in such a context. I’ll suggest that to implicitly hold an authority to be
legitimate is to take a particular kind of practical stance toward it, recognizing
rather than rejecting its claim on one’s obedience and allegiance. To take it to
be illegitimate is to take a dierent stance, treating it as a mere imposition.
We can then interpret the practical role of “legitimacy” as expressive: to call
an authority legitimate or illegitimate is to make one’s stance explicit, in dis-
pute with others. On this account, when we call a regime legitimate (or il-
legitimate), we do not describe it or represent it as having a certain moral
property. Rather, we engage it in some way, expressing a political stance to-
ward it and toward others subjected to it.
e third step is to make sense of the dierence between legitimacy de jure
and de facto— what it means for something to be legitimate, as opposed to
its merely being taken as such by others, or indeed by oneself. e key is to
interpret this distinction in terms of the pragmatic dierences of social per-
spective among participants engaged in stance taking, rather than in terms
of the semantic relation of reference between legitimacy claims and a moral
property. e distinction between something’s being legitimate and its being
merely taken as such arises, and only makes sense, from a practical point of
view, and is brought into play by our practical taking- and- treating things as
6 us, my claim is not that one can infer “substantial normative conclusions” or “meta- normative
constraints” for a theory of legitimacy from a theory of language, as Eva Erman and Niklas Möller
suppose in their criticisms of my earlier formulations of these ideas. Brandom oers a compel-
ling framework for a pragmatic approach to conceptualizing political legitimacy. His theory does
not settle the content of such an account. Erman and Möller, “Brandom and Political Philosophy”;
Erman and Möller, “What Not to Expect.” For my detailed response, see Fossen, “Language and
Legitimacy.” e latest iteration of their critique still reads into my account arguments I am not trying
to make. Erman and Möller, “Political Legitimacy and the Unreliability of Language.” See also Prinz,
“Principles, Practices and Disciplinary Power Struggles in Political eory.”
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43
legitimate. Call it a “right to rule” if you will, but on this account that is not
seen as a self- standing property that political authorities have or fail to have
under certain independently speciable conditions. Rather, it is a normative
status that is attributed or withheld from concrete, embodied perspectives
of political subjects taking stances toward a regime. It does not follow that
such a property does not exist, only that we can make sense of the concept of
legitimacy without positing it. Of course, this does not tell us whether to call
a regime legitimate or illegitimate in concrete cases— that is a matter of judg-
ment, and what that involves will occupy us for the remainder of the book.
e fourth and nal step is to examine what sense can be made of
attributions of legitimacy from an external point of view. I argue that there
is a crucial asymmetry between the standpoint of a participant in political
stance taking and that of an observer, arising from the dierence between ac-
tually taking a political stance and having an opinion about it. An observer’s
attribution of “legitimacy” does not have the same pragmatic signicance,
and hence not the same meaning, as that of a participant because it does not
involve the same kind of commitment on the part of the speaker.
2.2 ree scenarios
Let me give an initial sense of the practical predicament at issue by
introducing three moments in which, in dierent ways, political legitimacy is
at issue. ese examples will recur later in the book.
“e people demand the fall of the regime,” crowds chanted at Tahrir
Square in Cairo in early 2011, as they did throughout North Africa and the
Middle East. Simply in virtue of using social media, where calls for resistance
were widely shared, or just partaking of the Cairo trac, clogged even more
than usual, many people found themselves confronted with fellow citizens
who contested the regime, or with the regime’s countermeasures. At this crit-
ical moment, many people faced a pressing practical question: Shall I go to
the square to join the protests, try to ignore them, or perhaps express my loy-
alty to the regime in counterprotest?
In what sense was this a struggle for political legitimacy? e
demonstrations that led to the fall of President Hosni Mubarak did not orig-
inate from nothing. e immediate spark for the uprisings that occurred
all over the Arab world was the self- immolation of a Tunisian fruit seller,
Mohamed Bouazizi, in December 2010. Bouazizi’s wasn’t the rst such
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tragic act, but the footage of his burning was shared with unprecedented
speed and scope, turning local protests into a regionwide resistance move-
ment.7 In Egypt, the uprising was preceded by many smaller- scale protests
during the last decade of Mubarak’s rule. ese were occasioned by various
grievances, such as police abuse (“We are all Khaled Said”), the anticipated
succession of Mubarak by his son Gamal (the Kefaya movement, “Enough”),
and poor labor conditions and the suppression of protest (the April 6 Youth
Movement). e massive demonstration of January 25, 2011, was organized
by a coalition of these activists. ey formulated a set of concrete demands,
including new elections, a two- term limit on the presidency, an end to the
state of emergency, and a minimum wage, among others. Mubarak’s imme-
diate departure was not one of these. Yet on the rst day of protest, a crowd
assembled at an oce of the National Democratic Party (NDP) and cried: “il-
legitimate” and “Mubarak, your plane is waiting for you.”8 e popular slogan
of the Tunisian uprising was quickly adopted by the Egyptians: “e people
demand the fall of the regime.”
What distinguished the 2011 uprising from earlier protests? One com-
mentator called it a “tidal wave,” the largest in a series of waves that nally
broke the dam.9 is metaphor clearly captures something important: pro-
test was not a new phenomenon for this regime, which had withstood con-
siderable popular pressure, although perhaps it had been weakened more
than was apparent on the surface. But the image also misses a qualitative dif-
ference. e Tahrir Square protests did not just bundle and amplify demands
that had been voiced all along. In contrast to earlier protests against police
abuse, corruption, or labor conditions, the authorities themselves were now
being called into question at a more fundamental level, as expressed by the
demand for the regime to fall.10 So we might say that a struggle against unjust
treatment or problematic policies by itself is not overtly a struggle for polit-
ical legitimacy. e former concerns how power is exercised and what for;
the latter concerns who exercises power to begin with and what form that
7 Lim, “Framing Bouazizi.”
8 Khalil, Liberation Square, 144– 45. For accounts of the uprising (scholarly, rsthand, or both),
see also, for example: Lynch, e Arab Uprising; Ghonim, Revolution 2.0; Mehrez, Translating Eg ypt’s
Revolution; Gunning and Baron, Why Occupy a Square?
9 Lynch, e Arab Uprising, 101.
10 at is not to say that the legitimacy of the regime was never called into question before. For
many activists, Mubarak’s regime had long lost all credibility. But they did not typically overtly chal-
lenge the regime as such. Insofar as it was voiced publicly, disaection with the regime focused on
specic issues and demands. is may well have been for prudential reasons: it simply was too dan-
gerous, as an isolated activist individual or organization, to question the regime to its face.
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45
power takes. Of course, one might also call specic laws and actions legiti-
mate or illegitimate. But it is the more fundamental sense of the legitimacy of
the regime that concerns us here.
Another example of a situation in which the question of legitimacy was
raised explicitly and forcefully for many people is the confrontation that
began in the late 1960s between the establishment of the West German
Bundesrepublik (Federal Republic) and a multifarious movement referred
to as “the le.”11 In this case, people faced what was ostensibly a parliamen-
tary democracy, rather than a thinly veiled authoritarian state. But because
the radical le perceived the political establishment as implicated in global
imperialism, impervious to demands for greater justice, and impenetrable
by means of conventional party politics, many of them turned to extra-
parliamentary forms of protest. For a small portion, most prominently the
Red Army Faction (RAF), this involved violent action, including bank raids,
bombings, and kidnappings. e government perceived this challenge as a
threat to the republic’s existence as a parliamentary democracy and deployed
its police force, secret service, and military to seek out and imprison RAF
members. It succeeded in capturing the core Baader- Meinhof group in 1972.
But rather than putting an end to political violence, their imprisonment itself
became the object of a struggle for a second and third generation of “urban
guerrillas.”
It is clear here, as in the previous case, that the struggle goes to the heart of
the political order. e confrontation had ramications not only for those ac-
tively engaged in the conict, whether as a government ocial or a member
of the resistance, but also raised dilemmas for many who were less overtly
committed. e conict dominated public debate in West Germany. Issues of
contention involved, among other things, the allegedly inhumane treatment
of the “terrorists” or “political prisoners,” the extension of police prerogatives
and reduction of legal protections, the banning of citizens with radical polit-
ical ideas from public service, and the propriety of violence as a means of po-
litical action. For many, such issues prompted fundamental questions. Could
the Bundesrepublik still be seen as the liberal democracy it purported to be,
in view of the government’s heavy- handed response? What did it mean for
a person on the le to believe that “the killing of another individual is also
11 My account draws mainly on Aust, e Baader- Meinhof Complex; Kundnani, Utopia or
Auschw itz; Pekelder, “From Militancy to Democracy?”; Varon, Bringing the War Home. For an inci-
sive portrayal of West German political experience at the height of tensions in the autumn of 1977,
see the lm Deutschland Im Herbst by Alexander Kluge and a number of other directors.
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a catastrophe for their own existence,” and nd oneself called on to harbor
comrades who had gone underground?12
e turmoil and upheaval of the previous examples may give the impression
that the question of legitimacy manifests itself only in revolutionary moments.
Yet it can be raised also in times of “ordinary” politics, where a regime is well es-
tablished and generally accepted. One further episode illustrates this.
On an overcast spring day in 2013, throngs of celebrating people lled the
Dam Square in Amsterdam. Occasion for the festivities was the abdication
of Queen Beatrix and the inauguration of her eldest son, Willem- Alexander,
as the new king of the Netherlands. Above the swarms of inatable orange
crowns (the royal family is the House of Orange), red- white- and- blue uy
hats, and other such royalist paraphernalia, a careful observer could at one
point detect a piece of cardboard, held high, on which was written in black
marker: “I am not an underling.”13 It was raised by a young woman called
Joanna (she declined to go by her full name), though not for long, as she was
promptly arrested by undercover police and removed from the square. She
was released soon thereaer and the authorities issued a formal apology (and
a bouquet of owers).14 at unlawful arrest, more than the protest itself,
gave Joanna a moment in the national limelight. is was a repeat of a similar
incident a couple of months before, when, at a birthday bash for the queen,
Joanna was arrested (also unlawfully) by the police when she held up a make-
shi placard, which read: “Away with the monarchy; it is 2013.” By the time
of the inauguration, the anti- monarchists had made this the hashtag for their
campaign (“#Hetis2013”).
Was this small note of dissent a contestation of political legitimacy? And
does it touch on the heart of the political order? It seems not in this case.
In terms of everyday decision making, the monarchy is a depoliticized and
marginal feature of the Dutch political system, and the ocial role of the
king is largely ceremonial. e monarchy is typically regarded as a harm-
less symbol of commonality, on par with the national football team. In fact,
many supporters of the monarchy don’t seem to take the monarchy all that
seriously themselves either.15 Many celebrators received the protesters
12 e quotation is from le- wing academic and critic of the RAF Peter Brückner, quoted in
Pekelder, “From Militancy to Democracy?,” 324.
13 I render the Dutch onderdaan as the somewhat arcane “underling” rather than “subject” because
the latter sounds too neutral. Onderdaan strongly evokes the sense of having a master.
14 According to the ocial story, the ocers involved overstepped their protocol. Van der Laan,
“Bestuurlijke Reactie Aanhoudingen Op de Dam.”
15 Margry, “Mobocracy and Monarchy.”
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47
with laughter or incredulity, and regarded them as attention- seeking party
poopers, not as political dissenters. So in a way, it is already controversial to
consider this protest as challenging the legitimacy of the monarchy, let alone
the regime as such.
Yet this is precisely the view of the monarchy Joanna sought to challenge.
From her perspective, the monarchy is not a negligible feature of the system.
Neither its symbolic role nor its eective power should be underestimated.
e king is formally head of the government. All legislation must bear his
signature. Joanna’s companion on the square carried a sign that read: “No
monarchy but democracy,” portraying as mutually exclusive what on the
self- understanding of the Dutch political system is compatible: constitu-
tional monarchy and parliamentary democracy. e hereditary privileges
and economic power of the royal family are an “insult to democracy,” Joanna
remarked in an interview.16 By having a king as its head, the state treats those
it calls its citizens as underlings, and in that context, surrounded by people
with orange face paint, “I am not an underling” can be read as a reproach of
those around her as well: “You are acting like underlings.” On this view, then,
the monarchy compromises both the democratic credentials of the system,
and the identity of its subjects as democratic citizens. At another occasion,
she called it the “mask of the capitalist dictatorship.”17
As this example shows, what looks from one angle like a contestation of
the right to rule may from another have little political signicance. e West
German case bears this out, too: many government ocials and citizens saw
the RAF’s political violence as a form of criminality rather than political ac-
tion. Whether a conict or disagreement is one in which political legitimacy
is at stake is not always clear- cut, and this is oen assessed dierently from
dierent perspectives.
2.3 Politics as stance taking toward rule: Subjecthood,
power, and authority
Our task in this chapter is to explain the meaning of legitimacy claims in
terms of the dynamics of political practice, without appealing to a prior
understanding of what legitimacy is. To that end, we need a conception of
16 “Pauw & Witteman.”
17 SocialistTV, Marxisme 2013 - Slotrally - Joanna.
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political practice, or at least of the specic form of political practice that
concerns us here. Of course, the term “legitimacy” is used in various practices
and in regard to various objects: from chess moves and children to election
outcomes and humanitarian interventions. I have already steered in a cer-
tain direction by speaking of “regimes” and “authorities,” but le deliberately
vague what these terms refer to. So we should ask: What is political about the
sense of political legitimacy at issue here?
On a metaphysical approach, one would answer this question by oering
a denition of a certain kind of thing that the property of legitimacy attaches
to, say, “the state,” “the political system,” “government,” or “political deci-
sion”— in our case, it would be “regime” or “political authority.” A statement
that something is legitimate would then count as a claim of political legiti-
macy insofar as the object of evaluation is “political” in nature, irrespective of
the context in which it is made. But I think this way of demarcating the polit-
ical is problematic because it prejudges part of what is at issue in the question
of legitimacy. As will become clear in Chapter 4, the nature of the object of
legitimacy claims is itself at stake where legitimacy is politically in question.
Did the le confront a “constitutional democracy” or a “military- industrial
complex”? Was the Mubarak regime an “elected government” or a “gang of
thugs”? Is the monarchy a harmless symbol of unity or the “mask of the cap-
italist dictatorship”?
On a pragmatic approach, we should specify the political not just in
terms of what judgments of political legitimacy are about— their object of
evaluation— but in terms of where and how they occur— their practical con-
text, the form of practice in which legitimacy is claimed. Or, to put this
slightly dierently, we need an account of the practical problem that a theory
of political legitimacy is supposed to speak to.
e notion of politics as stance taking locates the political at the nexus of
order and conict. If we simply equate politics with rule, then by denition
we dismiss as apolitical or anti- political those forms of activity through which
the given order is resisted or called into question. Likewise, it is one- sided to
dene politics exclusively in terms of exceptional moments of contestation,
and rule out the normal, day- to- day operation of political institutions by def-
initional at.18 I propose (taking a cue from Weber) that the type of practical
18 is point is well made by Bonnie Honig: “Politics consists of practices of settlement and un-
settlement, of disruption and administration, of extraordinary events or foundings and mundane
maintenances. It consists of the forces that decide undecidabilities and of those that resist those
decisions at the same time. To reduce politics to only one side of each of these operations, to depo-
liticize the opposite side . . . is to displace politics, to deny the eects of power in some of life’s arenas
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49
situation in which the term “legitimacy” has a distinctively political signif-
icance revolves around the attempt to rule and the response on the part of
those confronted with it. We all nd ourselves in a constellation of power
in which various agencies and institutions attempt to govern us: regulating
our behavior, coercing compliance, settling conicts, providing education,
raising taxes, controlling borders, granting or withholding citizenship, pro-
foundly shaping our lives and even our sense of self in manifold ways.19 We
inevitably comport ourselves toward those authorities in one way or another,
whether by complying, actively supporting, resisting, or trying to evade
them as much as possible. is encounter between subject and authority is
our phenomenological point of departure, and the question of how to com-
port oneself in relation to it— what to do?— is the practical issue at stake.
In our order of explanation, the relation of rule is prior to the relata: what
it is that makes the attempt (“authority”) and whom the claim is made upon
(“subject”) remain open questions. Chapters 4 and 5 delve deeper into the
issue of how to specify these notions. In this chapter, I will use [authority]
and [subjects] in a technical sense: the brackets indicate that these terms are
placeholders. e form that power takes and the identity of subjects remain
to be characterized in concrete settings. For now, just note that the term [sub-
ject] here has the double sense of having a rst- person practical perspective
on the world, and of being subjected to the powers that be.20 To be a political
[subject] is to have a practical point of view in relation to a multiplicity of
attempts to rule. It is also to nd oneself among others; there is always a mul-
tiplicity of perspectives on the relationships involved. And for something to
be an [authority] is for it to be the initiator of attempts to rule. is notion of
[authority] should be taken in a descriptive sense; it does not already imply
legitimacy.
To rule is to shape or alter the normative situation for those subjected. As
such, an attempt to rule is a specic mode of exercising power. Following
for the sake of the perceived goods that power stabilizes under the guise of knowledge, respect, ra-
tionality, cognition, nature, or the public- private distinction itself.” Honig, Political eory and the
Displacement of Politics, 205.
19 In situations of turmoil, one might nd oneself confronted with multiple conicting agencies
purporting to rule and vying for supremacy. Here, the question becomes not whether this is legiti-
mate or illegitimate, but which (if any) of the competing purported authorities is legitimate: the king
or parliament? Tripoli or Bengazi? Cf. Meckstroth, e Struggle for Democracy, 137.
20 is responds to Michel Foucault’s observation that “[t] here are two meanings of the word ‘sub-
ject’: subject to someone else by control and dependence, and tied to his own identity by a conscience
or self- knowledge.” Foucault, “e Subject and Power,” 331.
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Michel Foucault, power can be understood as action upon the actions of
others.21 Relations of power shape or transform someone’s practical ho-
rizon, their spectrum of possible and appropriate courses of action. We can
distinguish two dierent ways in which someone can be ruled or governed.
First, an [authority] can try to exercise power by prescribing or prohibiting
courses of action, perhaps backed by sanctions. Someone purports to tell you
what you may or may not do, and you feel bound or compelled to comply,
whether because you take them to have a certain standing, or because of
the consequences you expect if you do not. Second, power can be exercised
by shaping your available courses of action in advance; for instance, by
contributing to the constitution of your sense of identity or by aecting
the material conditions of your agency. For example, by giving [subjects]
the status of citizens and the right to vote, [authorities] open up legally
constituted courses of political action and foreclose others; by structuring
markets and redistributing capital, they allocate economic resources that, in
turn, aect available courses of action; and by letting [subjects] undergo cer-
tain forms of education they inculcate certain habits and conventions and
not others.
Only some of the relations of power in which we nd ourselves are out in
the open, operating in ways we are aware of. Our practical horizon can also
be shaped by others in ways that operate subliminally or anonymously, be-
hind our backs and perhaps unintentionally.22 Once such modes of acting
on our actions are rendered visible, they cannot continue to determine our
actions in just the same way, since along with a rst- person perspective on
them also comes the possibility of a critical stance. Political authority, I pro-
pose, is represented power, power with a face, making a claim. To take some-
thing or someone as an authority is to see a multiplicity of attempts to rule
as originating from the same source, to perceive a certain unity and logic
21 “[W] hat denes a relationship of power is that it is a mode of action which does not act directly
and immediately on others. Instead, it acts upon their actions: an action upon an action, on existing
actions or on those which may arise in the present or the future.” Foucault, 789. See also Foucault,
History of Sexuality, Vol. 1; Rouse, “Power/ Knowledge.”
22 See, for example, Iris Young’s notion of structural oppression. Young, “Five Faces of Oppression.”
I agree with Rainer Forst that “in characterizing a situation as an exercise of power, we do not merely
give an empirical description of a state of aairs or a social relation; we also, and primarily, have to
place it in the space of reasons, or the normative space of freedom and action.” In other words, we
take it as something that someone can be taken as responsible for. Forst, “Noumenal Power,” 112. But
contrary to Forst, I do not assume that all relations of power are recognized as such by those involved
in them.
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51
behind them, a certain consistency, a pattern, and a sense (perhaps unac-
knowledged) of responsibility.
e notion of a political stance reects the idea that the encounter be-
tween [subject] and [authority] is, from either perspective, a practical con-
text, in which they can treat each other in a range of dierent ways. While
[authorities] attempt to rule their [subjects], they cannot fully determine
how those subjects respond to this. e normative situation someone is in is
always assessed dierently from dierent situated perspectives. [Authority],
in purporting to rule, adopts a certain stance toward [subjects], or makes
a claim on them: from its perspective, the appropriate way for them to re-
spond is to comply, or to endorse rather than subvert the power exercised
over them. us, [authorities] treat their [subjects] as responsible in various
ways. Where such a normative expectation is absent, we could speak of dom-
ination, or naked power, rather than authority.23 Insofar as [subjects] do not
respond in the manner called for, [authorities] deploy various means of con-
trol and coercion at their disposal to sanction non- compliance and minimize
resistance.
Since rule takes the form of a claim, one can take two basic stances in re-
sponse: recognizing or rejecting it. To recognize this claim is to treat it, on
the whole, in accord with the status that it claims (one might quibble about
details); to reject it is to treat it as an imposition. ese stances are exhibited
in action, in treating the authorities in one way or another, and they can be
made explicit in discourse (as we’ll discuss shortly). Where [authority] issues
prescriptions or prohibitions, a [subject] can comply, or attempt to resist, ig-
nore, or ee. Similarly, where [authority] constitutes the [subject’s] practical
horizon in advance, the [subject] can endorse the exercise of power or try to
subvert or escape it. ese basic stances can be manifested in a wide variety
of actions— obeying the law or breaking it on occasion, turning out to vote,
reporting suspicious activity, dodging the dra, supporting an underground
newspaper, and organizing home schooling.
To avoid misunderstanding, it is important to emphasize that a stance
is not the same as an opinion. Pace Weber (in our opening quote), taking-
as- legitimate is not understood here in terms of believing in legitimacy or
23 Bernard Williams’s example of the Spartans, who apparently regarded their slave class of Helots
as enemies, is oen mentioned. In such a situation, it seems, there can be no expectation of compli-
ance based on a sense of responsibility, only on force. But typically, there is at least the semblance of a
normative claim in relations of power— also in master- slave relations. Williams, In the Beginning Was
the Deed, 5.
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having an opinion about it. It is not primarily a doxastic but a practical at-
titude: recognizing or rejecting authority’s claim to rule is a way of acting in
relation to it; of comporting oneself.
Attributing a political stance to someone is a matter of interpreting the
commitments that person takes themself to have, as embodied in their course
of action. e notion of a stance is reducible neither to empirically observed
“external” behavior nor to subjective “inner” attitudes. Not every act of com-
pliance is an act of recognition; not every act of disobedience a rejection of the
attempt to rule— as we saw in the previous section, the political signicance of
words and deeds is assessed dierently from dierent points of view. Whether
an act counts as an act of resistance, expressing a stance of rejection, or crimi-
nality or attention seeking is fundamentally an interpretative question, and to
interpret the act one must situate it in an ongoing course of action. A “stance”
is not a mental disposition, it is an interpretative category about the meaning of
someone’s course of action.
2.4 Deontic scorekeeping: A primer
Now that we have a rudimentary conception of politics as stance taking toward
rule, the next move in our pragmatic order of explanation is to understand the
concept of legitimacy in terms of the pragmatic role it plays within this type
of situation— its function; what one does in deploying it. What is it to call [au-
thority] “legitimate” in the context of stance taking toward rule?
e basic idea is simple. Stance taking is a matter of relating practically to
rule and to concrete others, taking and treating them in certain ways rather
than others. In doing so, one implicitly treats the regime as legitimate or il-
legitimate. Calling political authorities legitimate or illegitimate is a way of
making one’s political stance explicit: it is to explicitly recognize or reject
[authority]’s rule in what one says, rather than implicitly in what one does.
Doing so makes it possible to dispute these stances by giving and asking for
reasons. Legitimacy is not a representational concept (referring to some prop-
erty). To claim (il)legitimacy is not to communicate some state of aairs but
to perform a political act that prompts people (including those in positions
of authority) to shi their stances and reconsider their responsibilities
in relation to the regime and to each other.24 Rule (normatively) expects
24 One could call the concept “performative,” but this should be treated with care. J. L. Austin
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53
compliance and purports to be entitled to such compliance. is is the point
of a legitimacy claim made on behalf of authorities. Suppose someone takes
[authority’s] claim to legitimacy to be sincere, but refuses to recognize it. It
can then, depending on the circumstances, make sense to make your rejec-
tion of the regime explicit, in order to challenge the authorities to redeem
their claim or change their ways, or to mobilize others to stand together and
force such change.
Robert Brandom’s “deontic scorekeeping” model of discursive practice
provides a theoretical account of the relation between what is implicit in so-
cial practices (broadly understood) and what is explicit in linguistic claims,
which enables us to elaborate this with greater precision. Brandom’s theory
is basically a systematic articulation of Wittgenstein’s pragmatist idea that
we should understand meaning in terms of use, or as Brandom has put it,
“[S] emantics must answer to pragmatics.”25 For Brandom, social practices
of all kinds are normative in that participants mutually hold one another re-
sponsible, taking- and- treating each other’s words and deeds as appropriate
or inappropriate in various ways. In his vocabulary, they keep track of the
commitments and entitlements (to such commitments) that each of them
undertakes and acknowledges. Commitment and entitlement are normative
or deontic statuses: a commitment obliges or makes one responsible to do
something in the eyes of the one attributing it, and an entitlement authorizes
or licenses one to do something, again in the eyes of some scorekeeper (an-
other participant, or an interpreter, or oneself). ese statuses are the basic
currency of social practice, and Brandom cashes out what it means to say
and do, believe and intend things in terms of mutually holding one another
to account by tracking one another’s commitments and entitlements.26
is does not mean that all social practices are to be understood with re-
spect to explicit rules or principles; typically, this normativity is implicit in
the ways participants treat each other, in the attitudes they adopt and the
stances they take, in habits, institutions, ways of speaking, and so on. But
originally used the notion of performativity to refer to speech acts that, in Quill Kukla and Mark
Lance’s words, “in their very utterance serve to enact, institute, or make true what they assert”; for
example, when an ocial declares a couple to be married (Kukla and Lance, “Yo!” and “Lo!,” 87). In
this sense, legitimacy claims are not performative: calling a regime legitimate does not make it so (cf.
Pitkin, Wittgenstein and Justice, 280– 82).
25 Brandom, Making It Explicit, 83. I oer a more in- depth interpretation of Brandom’s theory in
Fossen, “Politicizing Brandom’s Pragmatism.”
26 Brandom, Making It Explicit, 180– 91.
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deontic scorekeeping is a dynamic activity in the sense that participants
not only keep track of one another’s scores (in normal language: beliefs and
their truth, intentions and their propriety), they also make these scores ex-
plicit by talking to each other. is is the point of discursive practice, what
Brandom calls the “game of giving and asking for reasons”: words and deeds
have “pragmatic signicance” (they do certain things) insofar as they alter
the patterns of commitments and entitlements participants undertake and
attribute.27
Deontic scorekeeping conjoins two key ideas: it oers an inferentialist se-
mantics (theory of meaningful content) that is explained in terms of a social
perspectival pragmatics (theory of use). Commitments are, as Brandom oen
says, “inferentially articulated”: they hang together in a web that constitutes
a “space of reasons.” Inferentialism means that the content of a commitment
(or a claim) consists in its rational connections to other commitments—
what justies it (“upstream”) and what follows from it (“downstream”).
For someone to be entitled to a commitment is for that commitment to be
compatible with (licensed by) other commitments they have undertaken.
Whether one ought to acknowledge commitment to something (i.e., believe
or do something) depends on its compatibility with one’s wider repertoire of
commitments.
ese relations of compatibility and incompatibility are instituted through
social practices that have an essentially perspectival structure. By keeping
“multiple sets of books,” each participant distinguishes how things appear
to themself, and how they appear to others. ey keep track of what others
take themselves to be committed to in speaking and acting, in terms of the
commitments they acknowledge, and what they are committed to, in light
of the scorekeeper’s own account of those commitments.28 What anyone is
really committed to, and whether they are entitled to those commitments, is
negotiated among a multiplicity of perspectives in an ongoing open- ended
process of action and response. ere is no master scorecard; no privileged
point of view according to which truth and appearance can be distinguished,
or criteria formulated for distinguishing them. Brandom describes the prac-
tice of evaluating the truth of factual claims as a “messy retail business of
assessing the comparative authority of competing evidential and inferential
claims.” e question of which claims are correct
27 Brandom, 166.
28 Brandom, 488, 590.
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55
is adjudicated dierently from dierent points of view, and although
these are not all of equal worth there is no bird’s- eye view above the fray of
competing claims from which those that deserve to prevail can be identied
nor from which even necessary and sucient conditions for such deserts
can be formulated. e status of any such principles as probative is always
itself at issue in the same way as the status of any particular factual claim.29
is passage nicely captures Brandom’s non- foundationalism, which holds
for normative as well as factual claims: the absence of a sovereign standpoint
means that any claim to validity, as well any criterion for evaluating claims, is
provisional and inherently contestable. Because being committed is a matter
of being held to be committed (by others as well as oneself), the content of
these commitments cannot be spelled out in abstraction or in advance of
engagement in practice, but is rather determined provisionally in the actual
play of relations. Moreover, since the content of one’s commitments depends
on ongoing action and response, a subject cannot fully know in undertaking
a commitment what will later count as living up to that commitment.
To get a sense of how Brandom puts this framework to use and to get a
better grip on the signicance of his social perspectivism, it is worth looking
briey at his deontic scorekeeping account of knowledge. My proposal
will be to think of “legitimacy” along the same lines, while noting signi-
cant dierences as well. Brandom oers a reinterpretation of the traditional
understanding of knowledge as “justied true belief.”30 On that view, for
someone to know that p is (a) for them to believe that p; (b) for them to be jus-
tied in believing that p (rather than just happening to believe it); and (c) for
p to be true (because one may have good reasons for believing something but
nonetheless happen to be mistaken). Brandom approaches this from a prag-
matic angle: for him, the primary question is what it is to take someone to
know something, rather than what it is to know something.
e key is to recognize the dierences of social perspective between a
speaker who makes an assertion, and a listener who grants that assertion
the status of knowledge (on the part of the speaker). Brandom distinguishes
between the attitudes of attributing, undertaking, and acknowledging a
29 Brandom, 601.
30 Brandom, 201– 04; Brandom, “Knowledge and the Social Articulation of the Space of Reasons.”
Brandom’s understanding of knowledge and truth, and objectivity are subject to debate. See, for in-
stance, Lafont, “Is Objectivity Perspectival?”; Loeer, “Normative Phenomenalism”; Rosenberg,
“Brandom’s Making It Explicit.”
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commitment. Attributing a commitment is the attitude of taking someone to
be committed to something. Undertaking a commitment is to do something
that entitles others to attribute the commitment to you, whether or not you
acknowledge this commitment. And to acknowledge a commitment is to at-
tribute it to yourself, taking yourself to be thus committed.
Now, in Brandom’s view, to take someone to know that p is (a) to attribute
to them a (doxastic) commitment to p, (b) to attribute to them an entitle-
ment to that commitment, and (c) to acknowledge commitment to p your-
self. Knowledge is a “complex” and “hybrid” deontic status: complex because
it involves two distinct avors of normative status (commitment and entitle-
ment), and hybrid in that it must be understood with reference to two dis-
tinct social perspectives. What is most interesting about this is what happens
to the truth condition. Truth is not a property that a proposition must have,
in addition to being believed and justied, in order for a claim to count as
knowledge. To say that a claim is true is just to express commitment to it.
Likewise, “knowledge” does not refer to some class of claims or beliefs that
are not only justied but also really true, independently of any scorekeeping
perspective.31 Rather, when I take you to know that p is the case, I attribute to
you a commitment and an entitlement to holding that p; but I also acknowl-
edge a commitment to p on my own part. It makes no sense to deny that p is
true and yet claim that someone knows that p.
2.5 Political legitimacy as a complex hybrid deontic status
Like knowledge, political legitimacy is a socially perspectival and inferen-
tially articulated standing in the space of reasons. And like knowledge, it is
complex, involving the statuses of commitment and entitlement, and hybrid,
in that it must be understood with reference to multiple perspectives (sub-
ject, authority, and other subjects). e crucial dierence, though, is that
the commitments involved in knowledge are doxastic (beliefs about how
things are), but in the case of political legitimacy they are practical: they are
commitments to do certain things— in our case, to take- and- treat each other
31 As Joseph Rouse puts it: “ere are many appropriate ascriptions of ‘knowing’ within the mul-
tifarious practices of assessing, attributing, relying upon, or contesting understanding and justi-
cation, but there is no nature of knowledge underlying these ascriptions.” Rouse, How Scientic
Practices Matter, 179.
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57
in certain ways.32 Knowledge pertains to our cognitive relation to the world,
whereas political legitimacy concerns our practical relation to a regime. is
is inherently a political relationship, a power relationship. As we will see, this
introduces an asymmetry between the practical and the observer’s point of
view that does not arise in the case of knowledge claims.
What, then, is the perspectival and deontic structure of legitimacy claims?
Abstractly, such a claim, situated in a practice of stance taking, looks like this:
(1) Stance taker: is [authority] rules us [subjects] (il)legitimately.
Again, the brackets signal that the character of subjects and authorities is to
be specied somehow. Notice that the claim is framed from the rst- personal
standpoint of a participant in stance taking. is reects our pragmatic angle
of approach: the point is to grasp a legitimacy claim in terms of its use, so we
start from the practical standpoint. e last section will address the possi-
bility of third- personal attributions of legitimacy from the standpoint of an
observer.
Now in light of the conception of stance taking presented above, the pat-
tern of attributions of commitments and entitlements made explicit by such
a claim to legitimacy (or illegitimacy) can be laid out as follows:
a. e stance taker attributes a commitment to rule to [authority]. From
the speaker’s point of view, [authority] acknowledges a commitment to
rule [subjects] and purports to be entitled to that commitment.33 (In
the absence of such a claim, it would appear as naked power or domina-
tion, not authority.)
b. e stance taker attributes (or withholds) an entitlement to rule to [au-
thority]. From the stance taker’s own point of view, [authority’s] com-
mitment to rule is either compatible or incompatible with other things
the speaker takes [authority] to be (implicitly) committed to. at is to
say, the speaker considers [authority’s] claim to be entitled to rule as
justied (or not).
32 For Brandom, there is a sense in which believing things about the world is also a kind of doing
(undertaking commitments, interpreting claims, drawing inferences), but this does not prevent him
from drawing a key distinction between doxastic and practical commitments. Brandom, Making It
Explicit, for example, 238– 43.
33 A defeasible claim that one is entitled to a commitment is implicit in acknowledging a commit-
ment. is just means that one purports to have reason to do what one does; that it is not incompat-
ible with one’s further commitments.
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c. e stance taker acknowledges a commitment to treating [authority]
in ways appropriate to its status. If the speaker claims that [authority]
is entitled to rule [subjects], that implies that the speaker, qua [sub-
ject], is liable to being governed. In making this claim, the speaker
acknowledges that they are responsible for treating [authority] as a
source of further commitments and entitlements (e.g., by complying
with its demands or restrictions, upholding the regime, pursuing the
modes of action it opens up).34 On the other hand, if [authority] is not
entitled to rule (from the speaker’s point of view), then it cannot genu-
inely commit or entitle the speaker to do anything, and so the speaker
commits themself to treating [authority] as a mere imposition (which
it may, e.g., be appropriate to resist).
d. e speaker attributes the same commitment to treating this [au-
thority] in ways appropriate to its status to other [subjects]. A stance
toward a regime is also a stance toward others subjected to the re-
gime. is is because rule is a relation of power between [authority]
and a class of [subjects]; it is not addressed personally to a single stance
ta ker.35 Of course, the boundaries of that class of [subjects] (and poten-
tial dierentiations among them) remain to be specied. So, in calling
the [authority] (il)legitimate, the speaker normatively expects the same
stance of recognition or rejection on the part of others, and commits
to treating them accordingly (e.g., by exhorting loyalty or mobilizing
resistance).
Much remains implicit and underspecied in claim (1). e following
mini- dialogue comes a little closer to what a real- life dispute might look like:
(2) Stance taker A: “Our queen rules us legitimately. Stop your devious
plotting and rejoice!”
(3) Stance taker B: “No way! at tyrant is not my queen. Let us bring
her down.”
34 On this point, I follow Applbaum’s “power- liability” view (despite our dierence in approach).
He denes legitimacy as a normative power, the power to change subjects’ normative situation. As
such, it does not simply correlate with a duty to obey. Applbaum, Legitimacy.
35 is reveals another dierence with Brandom’s analysis of knowledge, which involves only two
perspectives (interpreter and knower).
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59
ese stance takers don’t dier only as to the modality of their stance (rec-
ognition or rejection), which is what the abstract claim in (1) sought to
highlight. ey dier in two further respects: characterizing [authority] in
dierent ways, and spelling out some of the practical implications they take
their stance to have.
e content of all these further commitments is inferentially articulated.
Upstream in the space of reasons are the reasons why this [authority] has
the character that it has (“our queen” or “that tyrant”), and why as such she
is entitled to rule (or lacks that entitlement) from the speaker’s point of view.
ese reasons may be dierent from those the authorities explicitly endorse.
For example, a religious believer may regard any form of rule as ordained by
God, even if the queen presents herself as secular. Downstream lie the prac-
tical implications of [authority’s] having that status, specifying on the one
hand what “ruling” consists in, and on the other what subjects are supposed
to do that is “appropriate to its status”— in other words, what recognizing or
rejecting the regime amounts to practically. us, people can take stances
with the same modality (recognition or rejection) while disagreeing about
the attendant responsibilities (political obligations) they thereby undertake;
for instance, whether or not it is appropriate to take up arms against a tyrant,
whether one might refuse serving in the army of even a legitimate queen, and
so on. In practice, all of this is lled in dierently in dierent contexts and
from dierent points of view, though it can be made explicit in the game of
giving and asking for reasons.
e point here is not that legitimacy claims literally take the form
represented in claim (1). Whether a claim is a claim of political legitimacy
depends on whether it has the role of expressing a political stance toward
[authority]. e protesters’ chant “e people demand the fall of the regime”
is a fairly straightforward claim of illegitimacy. Although the word “legiti-
macy” doesn’t occur in the phrase, its point is clearly to explicitly reject the
regime’s rule. e slogan articulates a perceived incompatibility between the
persistence of the regime’s rule and the demands of the people. It is almost
functionally equivalent to “is regime is illegitimate.” Almost, but not ex-
actly, because it also casts [authority] in terms of “the regime” (not a neu-
tral term here) and [subjects] as “the people,” entitled to make demands.
Moreover, it situates the protesters as on the side of the people, and regime
loyalists as against them. Joanna’s stance, by contrast, doesn’t become unam-
biguously explicit. While it is clear that she is against the monarchy, it is not
evident that this monarch rules. Whether her protest should be taken as a
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rejection of the regime as such or just a polite proposal to change a marginal
feature of the political system is open to interpretation. (As we will see in Part
II, though, her claims about the political system, political identity, and the
untimeliness of the monarchy still bear on the question of legitimacy, even if
her stance is ambiguous.)
Of course, taking stances is not just a matter of polite conversation and
argument, as the street battles around Tahrir Square and the political vi-
olence in West Germany bring out. Since authorities tend to have other
means at their disposal besides justifying themselves discursively or
changing their ways, and because their claim to legitimacy can be disingen-
uous or farcical, making one’s stance of rejection explicit in the face of that
authority oen carries signicant risk. Moreover, such rejection can nd
expression not only in assertions of illegitimacy, but also in deeds— public
ridicule or implicit parody of authorities, desecration of public symbols,
gathering and marching in protest, acts of violence, and so on. e RAF, like
others in the radical le, saw the Bundesrepublik’s explicit commitment to
democracy and the rule of law as masking its true nature as a fascist police
state. Because the RAF regarded the state’s claim to legitimacy as disingen-
uous, they saw little point in discursively engaging it. Nor did they believe
their actions would lead directly to the overthrow of the system. e self-
declared point of the RAF’s actions, at least initially, was rather to shi the
stances of other subjects in relation to the Bundesrepublik by changing their
perception of it and subverting their self- understanding as democratic cit-
izens, with bombs that would “detonate also in the consciousness of the
masses.”36 is suggests that nonlinguistic political actions, including
acts of violence, can do (or attempt to do) by other means what discur-
sive assertions of legitimacy do explicitly, namely to aect the stances of
[subjects] and [authorities].
2.6 Legitimacy de jure and de facto
I have proposed that the point of the concept of legitimacy (and functional
equivalents) in political practice is to make political stances explicit. Still,
someone might grant all this about the political pragmatics of legitimacy,
36 RAF, “Über Den Bewaneten Kampf in Westeuropa,” quoted in Varon, Bringing the War Home,
199. See also RAF, “Das Konzept Stadtguerilla.”
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61
while denying that this helps us to say anything about what it means to really
be legitimate. What it is to claim legitimacy may not seem to get at the heart
of what it is to be legitimate. So it may seem that we still need to explain the
nature of political legitimacy in a way that goes beyond the pragmatics of
legitimacy claims, perhaps by invoking the moral character of legitimacy as
a property. Aer all, we need to distinguish what is legitimate (de jure) from
what is merely taken to be so (de facto). I agree that this distinction is crucial,
but we do not need a deeper account of the nature of legitimacy to grasp it.
e pragmatics of disputing legitimacy provide all the resources we need to
make sense of the dierence between an authority’s being legitimate, and its
merely being taken as such— though not, of course, for drawing the line in
practice.
e key to understanding what legitimacy is in terms of what it is to take
something to be legitimate is to explain the distinction between de facto and
de jure legitimacy in terms of the situated perspectives of participants en-
gaged in political practice. e basic idea is to locate the distinction within
the practical point of view of a participant in stance- taking practice, and to
say that it reects a tension that emerges from the perspectival structure of
that practice. Briey put, for political authority to be legitimate (according
to someone) is for it to be appropriate to take it to be legitimate (from that
perspective)— and not just for it to be taken as legitimate (from others’ point
of view). is builds into the denition of the concept a reference to the rst-
and second- personal perspectives of stance takers. What is legitimate is not
reducible to what is taken as such, but what it means to be legitimate can be
explained in terms of what it is to take it as such.
To esh out what this means, it is helpful to consider two alternative and
equally problematic ways in which one might interpret the idea that being
legitimate can be understood in terms of takings- as- legitimate. First, the
claim that the distinction between the de facto and de jure senses of legit-
imacy should be understood from a practical standpoint might be under-
stood as meaning that legitimacy is merely subjective. e idea would be
that from any perspective, what is legitimate is simply what is taken to be
legitimate from that perspective. But to conceive legitimacy as merely sub-
jective collapses the distinction (from a participant’s perspective) between
something being taken to be legitimate and something actually being legit-
imate, and hence denies the possibility that one might be mistaken. While
there is no sovereign point of view from which a stance can be qualied as
appropriate or inappropriate, this does not make stances arbitrary; from the
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perspective of any participant, stances (including one’s own) are liable to crit-
ical evaluation, and participants can be held responsible for them.
Attempting to avoid the trap of subjectivism, one might fall into an-
other. A second proposal might be that whether a political stance is ap-
propriate or not is not up to the individual, but to the community as a
whole, as represented by a set of collectively accepted principles. Any
particular subject can then be understood to be correct or mistaken with
reference to those communal norms. is suggestion recognizes that one
can have commitments that one fails to acknowledge. But just as subjec-
tivism negates the possibility of a subject’s being mistaken, the move to
communal norms denies the possibility that the community could be
mistaken, as well as invoking a reied conception of the community as
a whole.
Instead of collapsing what is legitimate into what is merely taken to be so
(whether by an individual or by a community), we can interpret this distinc-
tion as articulating a fundamental tension between the commitments you
happen to acknowledge or attribute to yourself, and those you actually un-
dertake.37 Engaging in discursive practice involves taking the perspectives
of others as well as yourself, comparing how things appear to others and
how they are (according to you), and distinguishing what others acknowl-
edge commitment to from what you take them to actually be committed to.
e possibility of being mistaken can therefore be understood, in the rst in-
stance, in terms of the dierences of social perspective between participants,
namely as the discrepancy between commitments others attribute to them-
selves, and those they actually undertake (from the perspective of some
scorekeeper). Yet discursive engagement also introduces a moment of re-
exivity: one puts the commitments one acknowledges up for assessment,
committing oneself to providing reasons when challenged and to revise
one’s repertoire if compelling challenges are put forward. ere is always the
possibility that some of your acknowledged commitments will turn out to
be inappropriate, even in your own eyes.38 What you are truly committed
to, in contrast to what you acknowledge commitment to, is not given and
fully transparent to yourself, but always remains at issue. is tension can be
37 My argument in this section is inspired by Brandom’s accounts of normativity and objectivity.
See especially Brandom, Making It Explicit, 37– 41, 52– 55, 584– 601.
38 As Brandom puts it, the commitments one actually undertakes always “outrun” those one
acknowledges. Brandom, 627. I discuss this point in more depth in Fossen, “Politicizing Brandom’s
Pragmatism.”
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63
practically negotiated in ongoing action and response with others, but not
denitively resolved. ere is no master scorecard on which what one ac-
tually undertakes is recorded, nor a privileged point of view from which it
could be evaluated.
In this light, the distinction between what is legitimate and what is merely
taken to be so can be understood as just a specic case of this basic tension
between the practical commitments one acknowledges, and those one actu-
ally undertakes, arising from the perspectival structure of disputing legiti-
macy. e normative status of legitimacy is brought into play by our ongoing
implicit activities of taking- things- as legitimate and illegitimate, but it is
not constituted by particular acts of taking- as. To say that an authority is le-
gitimate de facto but not de jure is just to say that others take or treat it as
legitimate, while it is not (from your own situated perspective). is is to in-
terpret those others as taking a political stance to which they are not entitled
(on your account), and to express your own stance of rejection. Likewise,
you may want to say that the regime is legitimate even if others don’t take
it to be so. It is vital to distinguish your interpretation of other people’s
stances toward a regime from your own political stance. (And this, if you
recall from Chapter 1, is precisely the distinction that gets lost in Weberian
conceptualizations of legitimacy.)
2.7 ird- personal attributions of “legitimacy”
Let us nally examine the relation between the practical standpoint of
someone situated within a concrete encounter with a regime and the stand-
point of an external observer of that situation. Our enquiry started with the
former, simply because we were trying to explain what legitimacy is in terms
of the concept’s practical role. But what should we say about third- personal
attributions of legitimacy? Can’t you make a claim about the political legiti-
macy of any regime, whether you nd yourself practically confronted with it
or not?
Of course, you can say of any regime that it is legitimate. But it is not ev-
ident what it means to say so. e practicality of the question of legitimacy
introduces an asymmetry between the practical and the observer’s stand-
point that does not arise in the case of knowledge. e asymmetry stems
from the dierence between taking a political stance oneself and attributing
commitments to others. Imagine an external observer, historically distant
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from but informed about the situation in which our mini- dialogue between
stance takers A and B took place:
(4) Critical historical observer: “at monarch ruled her subjects legiti-
mately (even though some radicals rejected her).”
What is this claim expressing? And what is its pragmatic upshot?
As their dismissal of the “radical” stance taker B indicates, the observer
is making a de jure claim, to the eect that the monarch’s rule is justied (on
the observer’s account). e observer purports to adjudicate the dispute in
that historical situation in favor of stance taker A, though not necessarily for
the same reasons endorsed by stance taker A (which remain implicit here).
However, and this is crucial: the observer is not expressing a political stance.
On the account oered above, taking a stance is practically taking- and-
treating the regime in a certain way. Stance taking presupposes the existence
of a contentious political relationship, and ex hypothesi our observer does not
nd themself practically confronted with the [authority] in question.
Consequently, the pattern of commitments and entitlements involved in
claim (4) is dierent from the pattern laid out in Section 2.5. e observer
does attribute a commitment and entitlement to the [authority] in question
(a and b), considering their rule as justied. But the observer undertakes no
practical commitment on their own part to take- and- treat this monarch in
one way or another (c). And, although the observer attributes such a com-
mitment to A and B qua [subjects], appraising their stances as appropriate or
inappropriate (d), in this case, that amounts merely to a third- personal inter-
pretation of what they are doing, not a concrete, rst- and second- personal
practical holding- to- account.
e obvious point is that, practically speaking, the observer stands in a
very dierent relation to the situation than the participants. e observer
is talking about a regime to which they are not subjected and disputing the
stances of others who cannot talk back. e observer is not engaging with
A and B and their regime in the same way that they engage with each other.
As a consequence, the pragmatic signicance of their statement is very dif-
ferent from a situated legitimacy claim: it expresses an opinion (doxa) but not
a political stance (praxis).
It is true that the critical observer still commits themself practically in a
hypothetical and indirect way. Aer all, commitments are inferentially ar-
ticulated. If I claim, as an observer, that that monarch ruled her subjects (il)
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65
legitimately, then it follows that if I were her subject, I would be committed to
treating her in a manner appropriate to that status. Moreover, if the reasons
for my saying that that historical monarch is legitimate also entail that the
regime that I nd myself confronted with here- and- now is legitimate,
then my claim about her also implies a practical commitment vis- à- vis my
own regime. (is latter point, though, would depend on a set of collateral
commitments to the eect that it is a relevantly similar regime in relevantly
similar circumstances, which are likely to be highly contentious.) So opinions
can have practical implications. But their signicance is not that of actually
taking a political stance in relation to a regime. In contrast to the claims of
our stance takers A (2) and B (3), the observer’s assertion (4) partakes in po-
litical stance taking at most indirectly.
e same asymmetry between the practical and the observer’s point of
view does not arise for knowledge claims (involving doxastic commitments)
because the knower and interpreter presuppose that they share a world of
facts, such that commitments and entitlements about what those facts are
can be inherited across dierent perspectives and dierent contexts.39 Qua
scorekeepers, they are part of a discursive community. By contrast, polit-
ical stance takers in dierent contexts are oen not part of the same political
community.
e signicance of this point remains to be examined. It depends on an
analysis of the form of practices of political stance taking and the things
and concepts involved in them, which we shall examine in Part II. In chess,
this asymmetry is unproblematic. While there is, of course, a phenomeno-
logical dierence between making a move oneself and evaluating someone
else’s moves, this does not really matter for evaluations of the propriety of
moves since both players and observers familiar with the game can readily
be assumed to share the same rules and concepts (how a rook moves, the
conditions for victory, etc.). e player and the observer don’t share the
game, but they share the practice. In politics, however, this cannot be taken
for granted. Only in a highly abstract sense do stance takers in one historical
39 See Brandom, Making It Explicit, 238– 43. Especially p. 239: ere is “a fundamental asymmetry
between expressing a belief by making a claim and expressing it by performing an action. What
I take- true I thereby, ceteris paribus, authorize you to take- true. . . . [I] n general what serve me as
good reasons for belief can serve you also as good reasons for that same belief. What I (seek to) make-
true, however, I do not thereby in general authorize you also to (seek to) make- true. What serve me as
good reasons for action may or may not be available to you as good reasons for action. . . . For you and
I may have quite dierent ends, subscribe to dierent values, occupy dierent social roles, be subject
to dierent norms.”
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context and the next share the same practice, namely in the sense that they
can be interpreted as engaging in stance taking toward some form of rule.
But that does not presuppose that they share the same political concepts
and are committed to the same norms. ey may nd themselves in very
dierent constellations of power relations and with dierent practical
self- understandings.
2.8 Conclusion
e view I’ve proposed thus far can be summarized as follows. e theo-
retical concept of political legitimacy names a practical, political predica-
ment: confronted with authorities that attempt to rule them, political subjects
are forced, implicitly or explicitly, to take a stance. When we call authorities
legitimate, we do not represent them as having the property of legitimacy.
Rather, we express our political stance toward that regime and toward others
subjected to it. “Legitimacy” is a piece of practical vocabulary that enables
subjects to articulate and dispute their political stances with others. Having
a practical point of view involves distinguishing between what others take
themselves to be committed to, and what they are committed to from one’s
own perspective; the stances they take and one’s own stance. is is expressed
by the distinction between de jure and de facto legitimacy: it articulates the
dierence between political authority that is legitimate— from one’s own
perspective— and that which is merely taken as such by others— or, reex-
ively, by oneself. is distinction reects the perspectival character of the
practice of disputing legitimacy.
is is, in a sense, a deationary concept of political legitimacy. It explains
what political legitimacy is in pragmatic terms and claims that this is all
one needs to say about the nature of legitimacy. But, of course, as political
subjects, we still face the practical predicament of what stance to take—
whether the regime confronting us is legitimate and what sorts of further
responsibilities this involves (to obey and uphold that authority? to re-
sist?). It follows from Brandom’s social perspectival account of meaning that
judgments and criteria of legitimacy are inherently contestable because no
one’s perspective is sovereign. Disputing legitimacy is a matter of making
explicit and altering the scores that one takes to obtain here- and- now from
these- and- those points of view— although the boundaries of the here-
and- now and the range of pertinent points of view remain open questions.
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67
When seen in this light, enquiring about the reasons someone might have
for taking- and- treating a regime as legitimate or illegitimate appears not
as a matter of disclosing the sources or grounds of a mysterious property,
as if discovering and communicating an independently true score, but as a
situated intervention in a political dispute.
Yet this only takes us so far. As far as Brandom’s theory is concerned, so-
cial perspectivism is a feature of any game of giving and asking for reasons,
not just disputing legitimacy. e abstract acknowledgment of situatedness
and contestability is not enough. To grasp what is at stake in the question of
legitimacy, we should not focus narrowly on trying to pin down the content
and justication of reasons (in a contextual manner), but also enquire how
such reasons come into play. It is precisely because language doesn’t tell us
how to judge the legitimacy of a regime that a pragmatic approach draws our
attention to the dynamics and conditions of the political (and not just gen-
erally discursive) practices in which political legitimacy is at issue, and the
vulnerabilities to which they expose us.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0004
3
Rethinking Judgment
3.1 Introduction
We turn now from the concept of political legitimacy to the problem of judg-
ment: What is involved in judging the legitimacy of a regime? e notion of
judgment is undertheorized in the philosophical literature on political legit-
imacy. As we saw in Chapter 1, contemporary theorists of legitimacy focus
on a certain form of normative knowledge: the content and justication of
principles of legitimacy. is implicitly construes judgment as a cognitive act
in which one brings normative criteria to bear on a particular situation. No
sustained attention is paid to the ways in which the question of legitimacy
presents itself in practice and the forms of practical engagement through
which it might be addressed. However, if criteria of legitimacy are not simply
given to judgment, but subject to persistent disagreement and uncertainty,
then this framing of the problem appears problematic. In rushing to pro-
vide a certain sort of answer to the question of legitimacy, theorists of legiti-
macy ignore the political conditions under which the question appears, thus
neglecting to adequately diagnose the problem in the rst place.
is chapter develops an alternative picture of judgment to better grasp
the ways in which the question of legitimacy manifests itself in practice. As
a starting point, let’s say that judging legitimacy is distinguishing in practice
whether the regime with which one nds oneself confronted is legitimate, or
merely purports to be so. is responds to the thought (developed in the pre-
vious chapter) that the question of legitimacy should be understood in rst
instance as a practical predicament: a question of what stance to take toward
the authorities one faces. Legitimacy isn’t a property that political authorities
have or fail to have under independently speciable conditions. Rather, it is
a normative status that is attributed or withheld from concrete, embodied
perspectives of individuals in a political situation. If, following the analysis
of Chapter 2, calling an authority legitimate is expressing a stance toward
it, then judging legitimacy can be thought of as adopting or shiing such a
stance.
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69
I shall propose that we frame judgment in this context not as a discrete
moment of decision, but rather as an ongoing, intersubjective practice.
Judgment refers to a complex of activities through which our sense of political
reality is constituted, maintained, transformed, and sometimes subverted. It
is a matter of getting a grip on, or coming to terms with, a political situation.
I call this a practice of attunement to political reality. e present chapter
introduces the distinctive features of this notion of judgment. is opens the
way for an investigation of the forms of political involvement that judging
legitimacy consists in. Part II seeks to map these various activities: judging
legitimacy is a matter of representing the authorities one way or another
(Chapter 4); articulating who one is (Chapter 5); and craing political time
and space (Chapter 6).
3.2 On the notion of reective judgment
Recall from Chapter 1 that the normativist approach to political legitimacy
relies on an implicit picture of judgment as the application of given prin-
ciples to the facts at hand. Judgment is a cognitive act in which one brings
criteria to bear on a particular situation. e relevant facts and norms must
be treated as given, if judgment is to get o the ground. At a moment of judg-
ment, disagreement and uncertainty are out of the picture. ey ought to
have been dealt with at the prior level of justication. I called that implicit
picture impersonal and ahistorical, in the sense that it does not matter who
judges, where, and when, as long as one has the correct factual and normative
knowledge at one’s disposal.
If reection on the notion of judgment has been as good as absent from
the literature on political legitimacy, the same cannot be said of political phi-
losophy (or political theory) more broadly. Indeed, there has been a surge of
interest in political judgment in recent years. is turn to judgment is largely
motivated by dissatisfaction with the focus on general principles in main-
stream political philosophy. Whether because they are critical of abstract uni-
versalism, skeptical about the prospects of practically achieving consensus,
or appreciative of the value of pluralism, these critics hold that a conception
of political judgment should acknowledge that political standards remain
subject to persistent disagreement and uncertainty. My project is motivated
by similar concerns and partly builds on this work. It may therefore be useful,
as a starting point, to contrast the normativist picture of judging legitimacy,
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as articulated in Chapter 1, with the most inuential and well- developed al-
ternative found in this body of work: theories of reective judgment.1 We’ l l
see that these theories challenge the normativist picture in some but not all
important respects.
In doing so, we need to bear in mind that none of these theorists address
the question of legitimacy specically.2 In fact, many studies of “political
judgment” remain frustratingly vague about what sort of question the ac-
count is supposed to address, failing to dierentiate among various possible
questions, contexts, and objects of judgment.3 I don’t think we can assume
that all political predicaments call for the same form of judgment. e ques-
tion of whom to vote for, how to frame a policy initiative, what counts as a
just tax rate, and whether or not to take to the streets and demand the fall
of the regime (to name just a few) are all in some sense political and call for
judgment of a sort. Our aim here is not to develop a comprehensive theory of
(political) judgment as such, but to respond to a specic question that arises
in a specic type of context: the question of how to relate practically to the
regime with which one nds oneself confronted. Let us assume, for the sake
of argument, that theories of reective judgment are also meant to address
this question.
e notion of reective judgment was developed by Kant in the Critique
of Judgment to explain aesthetic and teleological judgments, and inuen-
tially reinterpreted as a distinctively political concept by Hannah Arendt.4
Kant draws the distinction between determining and reective judgment
roughly as follows. Let’s say that to judge is to characterize an object or ac-
tion as something: as a table (theoretical judgment), as permissible (prac-
tical judgment), as beautiful (aesthetic judgment), or as legitimate (political
judgment, in the narrow sense of this book). In determining judgment, you
have a frame of reference at hand, a set of pertinent empirical concepts or
normative standards, and you proceed to determine how a particular ob-
ject or action ts within that frame (“subsuming” the particular under the
1 See, among others: Azmanova, e Scandal of Reason; Beiner and Nedelsky, Judgement,
Imagination, and Politics; Ferrara, e Force of the Example; Zerilli, A Democratic eory of Judgment.
In addition to theories of reective judgment, see also Bourke and Geuss, Political Judgement. For an
innovative theory of democratic judgment, see Meckstroth, e Struggle for Democracy.
2 e only exception I have found is Mulligan, “Legitimacy and the Practice of Political Judgement.”
3 Typical in this regard are the inuential studies of Beiner, Political Judgment; and Steinberger,
e Concept of Political Judgment. Recent exceptions include insightful studies of judgment about
state apologies and about humanitarian intervention: Mihai, “When the State Says ‘Sorry’ ”; aler,
“Political Judgment beyond Paralysis and Heroism.”
4 Kant, Critique of the Power of Judgment; Arendt, Lectures on Kant’s Political Philosophy.
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71
universal).5 e normativist picture sketched in Chapter 1 is a form of de-
termining judgment because the particular authority in question is brought
under a principle of legitimacy that is given in advance. In contrast, in reec-
tive judgment, you do not have such a frame of reference available. You have
to somehow determine the object, qualify it as something, without having
appropriate concepts or criteria given in advance. You have to make up the
criteria as you go, so to speak. For Kant, this is paradigmatically the case
where beauty is concerned. Determining whether or not something is beau-
tiful is not a matter of ticking a number of predened boxes. Still, a judgment
of beauty is by no means arbitrary. Taking something to be beautiful implies
(for Kant at least) that one expects others to share this judgment. It is a claim
to validity. But this is a kind of validity based on the “force of the example,”
rather than the force of law or principle.6 When we claim that something is
beautiful, we are not describing a certain property that the object has, nor are
we reporting a merely causal eect it has on us. An aesthetic response is still
a judgment, situated in the space of reasons, but in a rather peculiar way; the
aesthetic section of the space of reasons is inherently underdetermined.
is exemplary validity emerges from the encounter with the object, from
the interplay between subject and object. Explaining how this works exactly
is no easy task. For Kant, this involves a specic account of how our mental
faculties are involved in aesthetic experience: the “free play” of the under-
standing and the imagination.7 What entitles us to declare our judgment
valid for others as well is that we can assume these mental faculties to be
shared by all humans. Judging well involves not just getting clear on how we
feel about the thing, but imagining how others would feel if similarly situated.
is sketch already skims over a number of interpretative issues, but there is
no need to address those here, since as far as I am aware, none of the contem-
porary theorists of political judgment wish to take on board these specics of
Kant’s story. ere is little agreement, however, on what to substitute.
Whatever the philosophical and hermeneutic complications involved in
eshing out this picture of judgment, for political theorists skeptical about
the philosophical justication of principles and appreciative of pluralism and
5 Kant, Critique of the Power of Judgment, 5:179.
6 Ferrara, e Force of the Example.
7 Kant, Critique of the Power of Judgment, 5:217. Not least among the diculties in transposing the
notion of reective judgment to politics is the fact that for Kant it is precisely our lack of practical
concern with respect to the object of aesthetic judgment that makes it possible to claim validity for
such judgments. For it is precisely our disinterestedness and impartiality that open the space for the
free interplay of our faculties from which this kind of normativity emerges.
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disagreement in politics, this notion clearly holds a great deal of promise.
Reective judgment diers from the normativist picture in key respects.
Most notably, the conception avoids the problem that contentious norms
must be treated as given prior to judgment, since it conceives of such
standards as themselves at stake in it. Validity derives from judging itself,
not from a standard external to it. For the same reason, contingent aspects of
political situations can aect the content and justication of criteria of legit-
imacy, and not just their circumstances of application, if one can still speak
in those terms. Aer all, the whole point of this picture is to do justice to par-
ticularity. us, this conception also seems well suited to account for the new
and unexpected.8 In both respects, it rejects the separation of justication
and application presupposed by the normativist picture and points to new
ways of political theorizing.
A further respect in which reective judgment diers from the normativist
picture is that judgment is not impersonal. I cannot judge something to be
beautiful merely on account of your report about it; I must stand in a certain
concrete relation to the object, if I am to judge it. is is because the judg-
ment isn’t simply about the object but also about my relation to it, the eect
it has on me. I must actually be confronted with the example, if it is to exert
its force (and set in motion the free play of the imagination and the under-
standing). Finally, with regard to the quality of judgments, reective judg-
ment also diverges from the normativist picture. Good judgment cannot be
understood in terms of the propositional content of judgments but must be
accounted for in terms of the way in which subject and object relate to one
another. In all those ways, reective judgment undeniably has its attractions
given the aims of the present project. And in many ways the story told in the
rest of this chapter resonates with and benets from this literature.
On reection, however, it is not so clear whether reective judgment fares
so much better than the normativist picture in avoiding the myth of the given.
If the normativist picture, in construing norms as given to judgment, wishes
away uncertainty and disagreement about criteria of judgment or relegates
them to another activity (justication), reective judgment seems simply to
pull a response to disagreement and uncertainty out of thin air. e validity
of judgments is enigmatically generated ex nihilo, rather than being bound
up with ongoing forms of political contestation. Insofar as Kant’s free play of
8 Herein lies the attraction of the view for Mihai, “eorizing Change”; and Wenman, Agonistic
Democracy, Chapter 7.
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the faculties is substituted by an alternative story, the mythical given pops up
again in a dierent form: the sensus communis, or whatever name one gives
to that which makes it so that this particular is exemplary of beauty, or legit-
imacy.9 In this respect, reective judgment simply mirrors the normativist
picture, rather than overcoming it.
is links up with a crucial presupposition that the notion of reective
judgment shares with the normativist picture: it narrows judgment to a par-
ticular subjective moment of decision, a mental process.10 Granted, the two
pictures dier as to how to characterize this moment: whether principles are
treated as given to judgment, or to be found in it. But they both take a time
slice from ongoing practice and call it judgment, ignoring the ways in which
judgment is situated in an ongoing course of action. Both pictures are his-
torically truncated.11 And insofar as our concepts and criteria are thought
to emerge from, rather than constrain, such episodic encounters with
particulars, it remains enigmatic how our judgments could hang together
and give us a genuine (if always precarious) grip on situations. e chal-
lenge, I think, is not to explain how one can judge politically in the absence
of concepts or criteria, but how received concepts and criteria of judgment
are at the same time at stake in it. And for this, one needs to situate partic-
ular moments of decision in ongoing practice of judging. For these reasons,
I think the notion of reective judgment does not challenge the normativist
picture deeply enough.
3.3 Judgment as a practice of attunement
e notion of judgment is notoriously equivocal. Judgment can refer to a
mental faculty or capacity (the power of judgment), to the exercise of such
9 For example, Alessandro Ferrara oers a convincing critique of two strategies for explaining the
sensus communis: a hermeneutic one, which traces it to a shared tradition or lifeworld background,
and a naturalistic one locating it in certain natural abilities. I am not convinced, however, that his
alternative solution in terms of a “capacity to sense the ourishing of human life and what favors it”
manages to avoid taking as given what is at issue. Ferrara, e Force of the Example, 31.
10 is is also Matthew Weidenfeld’s concern. Although I am more sanguine than he is about
Arendt’s work (for reasons discussed in Section 3.4), I nd his critique of the reective judgment par-
adigm compelling. Weidenfeld, “Visions of Judgment.”
11 Linda Zerilli’s notion of judgment as a “world- building practice,” while inspired by the notion of
reective judgment, also moves beyond it and toward a more dynamic and performative notion— for
building, it seems, must be understood as a form of action. Yet, as Julen Etxabe incisively observes,
Zerilli still tends to conceive judgment as a self- contained act, rather than a temporally extended
practice. Zerilli, A Democratic eory of Judgment; Etxabe, “Arendt, Democracy, and Judgment.”
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a capacity (acts of judging), to the product of such an exercise (the judg-
ment made).12 Moreover, these things can be studied under dierent aspects.
Wayne Martin usefully distinguishes three “faces of judgment”: psycholog-
ical, logical, and phenomenological. e psychological face shows acts of
judgment as causal mental processes; the logical pertains to the inferential
relations among the contents of judgments (propositions); and the phenom-
enological concerns judgments as they are manifested in experience (what it
is “like” to judge).13 e three faces of judgment are the focus of distinct (and
vast) literatures, and Martin shows that these are oen in tension with one
another, which attests to the diculty of developing a comprehensive, uni-
ed account of judgment (which I will not attempt here).
For present purposes, it will be most fruitful to focus on a fourth polit-
ical face of judgment, which Martin recognizes at the very end of his book.
Judgment, he observes, “takes place in and presupposes certain forms of so-
cial interaction.”14 Martin’s endpoint will be our point of departure: we shall
consider judgment primarily as it is manifested in action. Our approach to
political judgment, then, will not focus on a cognitive faculty, nor on mental
events, nor on the discrete products of the exercise of such a faculty. Rather,
we focus on judgment as a social practice, and particular judgments as moves
or performances in this practice.
To introduce this way of looking at political judgment, consider rst an
example from a dierent type of context. Suppose you and I are wandering
through the city center looking for a suitable place to share a meal. At every
restaurant we come across, we examine the menu to see if there is something
to our liking within our price range. We peek inside to sni the atmosphere
and appraise the clientele. We dismiss the rst restaurant because it seems
overly expensive; the next because you already had pizza yesterday. e third
does not seem responsive to my allergies. So as we proceed, we make explicit
some of the salient criteria that are in play. Other relevant considerations re-
main implicit. e exhaustion on my face may betray my impatience to just
have a seat at the rst establishment we see; perhaps you tacitly bracket your
qualms about the price to accommodate me. So as we search for a satisfactory
location for dinner, we engage in various activities. We assess information
about the restaurants and the neighborhood, gauge each other’s enthusiasm,
12 For an analysis of these and related distinctions, see Van der Schaar, “On the Ambiguities of the
Term Judgement.”
13 Martin, eories of Judgment.
14 Martin, 173.
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and feel the call of an empty stomach or an urgent need to make a pit stop.
Some of this is a matter of explicit discussion, some of private reection, and
some goes on below the level of our awareness, like the smell of warm bread
seducing us.
Where does “judgment” come into the picture, conceptually speaking?
At what point do we “judge” the suitability of a restaurant? One apparently
natural response, which I want to resist, would be to say that at each restau-
rant we come across we make a decision— to either go in, or move on— and
this decision is what we should call our judgment. In the sequence of events,
we can distinguish it from the reection or deliberation that happens before,
and the action that follows. We should then disambiguate this further by dis-
tinguishing the content of the judgment— that we go in, or move on— and
its form, the act of making the decision. We should also acknowledge that
this process already involves an array of prior judgments of a dierent kind
that constitute our beliefs about the restaurant, ourselves, and each other.
In any case, deliberation is supposed to terminate in a moment of practical
judgment, which then issues in action: entering the restaurant, or moving
on. Psychologically speaking, we might be interested in the mental processes
that generate the particular decision. Logically speaking, we might focus
on the array of inferences we draw (or fail to draw) in this process, some of
which may be valid, others not. Phenomenologically speaking, we might try
to analyze the experience of how and when a decision comes about. Finally,
politically, we might investigate the performance in which the judgment is
manifested: our joint action— or perhaps a breakdown or conict.
Whether regarded as mental processes, logical inferences, subjective
experiences, or social performances, practical judgment as an activity comes
into the picture here as a series of discrete events. We make a separate deci-
sion for each restaurant. is segmentation has the advantage that it neatly
distinguishes deliberation, judgment, and action as analytically distinct
moments in the course of events. But focusing on such moments of decision
also draws attention away from the way in which judgments (conceived as
discrete acts and contents) are interconnected to form part of an ongoing
activity. Just as in chess one must have a grasp of the game as a whole if one is
to understand a particular move as the performance it is, we need an account
of the practice of judging to make sense of what goes on in a particular mo-
ment of decision. And we cannot derive such understanding from an aggre-
gate of discrete moves. e problem with chopping up the activity of judging
into ostensibly independently intelligible parts is not that such moments
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of decision do not happen, or that they are impossible to pin down. While
moments of decision are undeniably pertinent to judgment, we should not
reduce judging to a string of such particular moments of decision, or at-
tribute primacy to them in the order of explanation. Doing so leaves salient
features of judgment out of view, as we’ll see presently.
e key proposal here is to understand what a judgment is (both act and
content) in terms of an account of the ongoing activity of judging of which
it is part, rather than the other way around. Just as the previous chapter
sought to explain the meaning of legitimacy claims in terms of the practice
of disputing legitimacy, our aim here is to account for judgments in terms of
their role in a practice of judging. So I think we should provide a dierent an-
swer to the question of where judgment comes into play in the scenario just
sketched: we engage in judgment all along. Judging is an ongoing activity.15
Two further considerations count in favor of this alternative way of
carving out our subject matter. First, consider that judging the suitability of
a restaurant doesn’t stop when we’ve entered the restaurant. We might re-
vise our decision, for instance, because the service is slow or the cook has a
runny nose. is reveals that we had not denitively judged the suitability
of the establishment upon entering it. Particular moments of decision are
typically provisional in this way, and that means they are not all there is to
judging. One might, of course, say that what happens here is simply that one
makes a new judgment. But that would ignore that it also casts a new light on
the prior judgment, revealing it as no longer valid, perhaps even mistaken to
begin with. Such provisionality can only be understood as an inherent fea-
ture of what we’re doing in judging when judgments are situated in an on-
going activity.16
Second, consider why it is that we come across this or that restaurant in
particular. Perhaps we le it to blind chance, stumbling through the city in ar-
bitrary directions. Or perhaps one of us is relying on the other who, knowing
the city better, is leading us in a direction where we are more likely to nd
a decent but inexpensive restaurant. Maybe, unknown to you, my cousin
15 e same point is well made by Etxabe, e Experience of Tragic Judgment; Hope, “Political
Philosophy as Practical Philosophy,” 466– 67.
16 Anthony Laden distinguishes two senses of provisionality: “a matter can be closed in a way that
allows for reopening” or “a matter is never fully closed to begin with.” Laden, Reasoning, 55, cf. 83. My
suggestion is that judgment is provisional in the latter sense. But doesn’t there come a point when the
deed is done? Well, yes. Yet, even aer we nish our meal, we might decide to write a review. Putting
our appreciation of the restaurant into words may cast a new light on the experience. So there is a
sense in which the content and validity of our judgment are not yet fully xed even now.
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77
owns this establishment and I am trying to get you to spend your money
here. In any case, a considerable amount of stage setting must have taken
place. e way in which the question arises for us now, facing this restau-
rant, wondering whether to enter or move on, is already conditioned by prior
judgmental activity. is prior judging inects what it is for us to judge here
and now because our entering or moving on continues or breaks with this
prior activity. In entering, for example, we express our ongoing willingness
to dine together, in addition to determining that we do so here and now. You
continue to rely on my sincerity, rather than breaking o our shared activity
and going our separate ways. Again, if we construe judgment in terms of a
particular moment of decision, these aspects appear as external to what it is
to judge. Of course, no one would deny that context is important for how a
decision is made; constraining, for instance, what information is available.
But the thought here is stronger, namely that judgment is inherently path-
dependent: our own uptake of our prior judging is part of what it is for us to
judge here and now. is path dependency is a constitutive aspect of judg-
ment.17 In sum, particular judgments should be understood as historically
situated in an ongoing practice of judging, in both a backward- and forward-
looking sense.
If judgment is an ongoing activity, what sort of activity is it? e basic idea
here is that judging refers to the various ways in which we try to get a grip on
the situation in which we nd ourselves. In judging, one relates practically to
salient aspects of the world, and to others encountered in that world. In the
present scenario, this means that judgment refers to the ways in which in our
quest for a delectable and convivial meal we comport ourselves vis- à- vis the
restaurants we pass, but also vis- à- vis ourselves, each other, and elements of
our surroundings. I’ll call this “judgment as attunement to reality.”18
17 “Judgment rejudges,” as Hans Lindahl succinctly puts the point. Lindahl, “Representation
Redux,” 486.
18 My proposal here is of a piece with Martin’s notion of “judgmental comportment,” which refers
to “how, in judgment, the judge orients himself toward various entities and authorities in play in
his world.” Martin, eories of Judgment, 155. While my account of judgment resembles Martin’s
in many respects, my mapping of the constitutive dimensions of judgment diers from his on two
points. We both see the object, the subject, and others as irreducible elements. But I do not think
that evidence constitutes a further, distinct dimension; rather, one’s way of dealing with evidence (or
failing to do so) is part of how one comports oneself toward an object, oneself, and others. Instead,
I add the dimension of what I call “surroundings”: things and events that make up the broader setting
in which one judges. Cf. Martin, 155– 70. Matthew Weidenfeld also provides a compelling account
of judgment as comportment, drawing on Heidegger and Dreyfus: Weidenfeld, “Comportment, Not
Cognition.”
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is way of framing the problem of judgment draws attention to the var-
ious things one might do when faced with the predicament of judging a res-
taurant, such as having another look at the menu, glancing down the alley to
see if there are alternatives nearby, asking one’s companion, “How are you
feeling?,” looking up reviews on a smartphone, or asking the waiter how their
kitchen handles allergens. On the view I propose, such activities are part
and parcel of judging. In contrast, on the segmented conceptual regimen-
tation sketched above, all of this is merely preparatory work, prior to judg-
ment. On that view, the preceding information gathering and stage setting
are qualitatively dierent activities from judging. e question “How can we
judge?” then becomes practically perplexing, rather than enabling, because
the things we could undertake to get a better grip on the situation no longer
count as judgment in the relevant sense.
Attunement to reality is clearly something one can perform in better and
worse ways, although what counts as such is highly contextual. For example,
neglecting to ask about allergens might in certain circumstances constitute
a failure of attunement to one’s bodily constitution and its propensity to
react in vehement ways to certain foodstus, and to the likelihood that such
ingredients are used in this kitchen. Your failure to notice and respond to
how tired I am could likewise be construed as a failure of attunement, as per-
haps would be my neglect to point it out to you.
e notion of attunement is meant to signal that this is a temporally ex-
tended, dynamic, and open- ended process of adjustment, a back- and- forth.
It is also meant to convey something of the precariousness of this process,
and consequently of our grip on reality. ere is no guarantee that this back-
and- forth will result in harmony. Especially in a political context, which is
always in ux and characterized by dierent points of view, attunement is
inherently open- ended.
3.4 Non- sovereignty and the space of appearance
e problem with which we are concerned here is not that of judging
restaurants but regimes. Yet, like nding a suitable restaurant, judging the
legitimacy of a regime involves a variety of forms of attunement to reality.
e relevant forms of activity dier, insofar as the question at stake and the
structure of the situation are dierent. In judging legitimacy, one comports
oneself toward the authorities, toward oneself and other subjects, and toward
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surrounding things and events. Each element constitutes an irreducible as-
pect of a situation in which one nds oneself confronted by power; we’ll ex-
plore these issues in Chapters 4– 6. e remainder of this chapter seeks to
develop the notion of judgment as attunement to political reality further, and
to contrast it with the normativist picture.
Recall our starting point that judging legitimacy is distinguishing in prac-
tice whether the authorities one faces are legitimate, or merely purport to be
so. Recall also that the normativist picture regards such judgment as a sub-
jective moment of decision: bringing a norm to bear on a case. e subject
is sovereign over her judgment: it is her will or intention that determines
its content, and determines whether she has judged at all.19 In contrast, on
my proposal, subjective decisions are not the essence of political judgment.
Rather, judgment is conceived as a form of practical activity, performed con-
tinuously by subjects facing authorities. ere are two aspects to this, which
both go against the presupposition of sovereignty: it is not a momentary
event but a temporally extended practice, and this practice is intersubjective
rather than purely subjective.
In the previous chapter, politics was conceived as a practice of stance
taking between and among subjects and authorities. In such a context, one
cannot avoid adopting some stance toward the regime, however implicitly,
since one inevitably treats the authorities in one way or another, whether one
ignores them as much as possible, actively provides support, engages in re-
sistance, or attempts to ee. We continuously, though perhaps unwittingly,
take authorities to be legitimate or illegitimate. e move now is simply to
say that in taking or treating the authorities as such, implicitly or explicitly,
one judges them. is implies that judgment is ineluctable, so long as one
partakes in the relevant practice.
Compare voting in elections. If you have the right to vote, you count as
a member of the electorate whether you turn out to vote or not. Not voting
when you could have is an electorally signicant performance, too. So there
is a sense in which you partake in electoral practice, and count as a judging
subject, whether or not you give any thought to the election, let alone con-
sciously opt for one or another candidate.
19 Sharon Krause captures this nicely: “We hold to a sovereigntist view of agency to the extent that
we identify agency in the ideal case with being in control of one’s action, where the content of one’s
will denes the meaning of the action, and one’s eects manifest one’s own reasoned choices rather
than the wishes of others or the random eects of chance.” Krause, Freedom Beyond Sovereignty, 3.
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is has the following important implication: decisions are not decisive.
You count as a judging subject by virtue of being a participant in political
practice, that is, insofar as you can be interpreted as a stance taker, not by
virtue of a process in your brain or the exercise of a cognitive capacity. So you
can judge without making a conscious decision, and you can decide without
judging. You may have never thought about the question of whether or not
the authorities are legitimate. Nonetheless, in treating them in one way or
another, you implicitly judge them. Conversely, if you decide that from now
on the regime has crossed the line and lost its legitimacy, but as far as an-
yone can tell, you carry on as before, you haven’t really judged dierently. You
haven’t done anything to entitle others, or in fact yourself, to attribute a neg-
ative judgment to you. Politically speaking, you haven’t judged dierently at
all, even though you think you’ve changed your mind.
Of course, to say that judgment is ineluctable leaves entirely open in what
manner one is judging; whether one does so wisely or foolishly, in a way that
is well attuned to what is salient in the situation, or not. And, of course, that
is precisely what matters. To insist that one counts as judging, even if one
pays no heed to the question, highlights both that thoughtlessness does not
absolve responsibility, and that there is always the possibility of shiing one’s
stance.
Let me linger on this point because this is perhaps the most controversial
and counter- intuitive element of my proposal. It goes against a pervasive as-
sumption, not only of the implicit normativist picture but also in much of
the explicit literature on judgment. Judgment is usually construed as what
takes place “behind” an act, the latter being merely an outer, social mani-
festation of an internal, mental process.20 But on the view proposed here,
to say that someone judges the authorities to be legitimate is not to report
about an event in their head but to attribute to them a certain political stance.
e key point is that, politically speaking, judgments of legitimacy are es-
sentially public, manifested in action. A subjective decision that is not (yet)
manifested in action, that has not entered the space of appearance and shown
its political face, has not truly happened. In order to count as a judgment in a
political sense, it must make an appearance.
20 e idea that judgment occurs essentially in mente is prevalent in works on political judgment.
See, for instance, Beiner, Political Judgment, 2; Garsten, Saving Persuasion, 8; Steinberger, e Concept
of Political Judgment, vii. For the same observation and a critique, see Weidenfeld, “Comportment,
Not Cognition.”
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81
Consider an example from another context: legal judgment in a trial. Only
a verdict pronounced at a particular time (aer the closing statements) and
place (in the courtroom) by someone authorized to do so (a judge or a jury)
counts as a legal judgment. Of course, we are focusing on a particular moment
of decision here, but the legal judgment is clearly not reducible to a mental
act. If a judge has decided a case in the privacy of her chamber, but a heart
attack prevents her from pronouncing it, she hasn’t judged, legally speaking.
Moreover, a courtroom spectator may have formed his own opinion of the
evidence and even committed it to print. His judgment makes an appear-
ance in the public sphere, but still, legally speaking it does not exist. It does
not enter the juridical space of appearance. A similar point holds for political
judgments, although the space of appearance is less clearly demarcated and
the conditions for appearance are not formally spelled out.
e notion of the space of appearance derives from Hannah Arendt, and
in adapting it here, I mean to acknowledge what I take to be the crux of her
conception of action.21 Arendt breaks with notions of agency that directly
correlate action with intentionality. e reason is that action takes place
among a plurality of agents, each with a distinct perspective, whose coming
together constitutes a space of appearance, an in- between where their
perspectives intersect. at action essentially occurs among others means
that the consequences of one’s action are, in principle, beyond one’s control
and cannot be foreseen: those consequences depend on how those others re-
gard and respond to it. But Arendt’s point goes deeper. It extends not just to
whether or not an action succeeds in accord with the intention of the agent,
but to the very being and meaning of the action. What someone has done, in-
deed whether they have acted at all, depends on how this is understood, sus-
tained, and potentially transformed by others. is is why for Arendt every
action is a beginning, which is to say an occasion for others to take it up and
carry it through.22 In this sense, the meaning of a performance depends on
what happens aerward. e meaning or propositional content of an action
cannot be understood in terms of correspondence with a subject’s intention,
but is bound up with an ongoing intersubjective practice of interpretation.
As a consequence, with regard to her actions, an agent cannot be sovereign.
21 Arendt, e Human Condition. For illuminating accounts of the non- sovereign character of
agency, see also Krause, Freedom Beyond Sovereignty; Markell, Bound by Recognition; Markell, “e
Rule of the People”; McFadden, “e Weight of Freedom.”
22 As McFadden glosses the point: “What makes the beginner’s deed an instance of beginning, an
action, then, is that others take it as an occasion to begin, to act, themselves.” McFadden, “e Weight
of Freedom,” 104; cf. Markell, “e Rule of the People,” 10.
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e juridical example also bears out the signicance of social uptake. For
a judge’s verdict to be a legal judgment in the full sense of the word, it must
not only be pronounced, but also enacted, whether by the parties concerned,
who treat it as binding by complying, or, failing that, by others entitled to en-
force it. Moreover, in interpreting the judgment in certain ways rather than
others, those who enact or enforce it also aect its content, twisting it, per-
haps, in ways neither foreseen nor intended by the judge. Indeed, whether
or not the verdict stands at all as a legal judgment depends, potentially, also
on the judgment of a court of appeal. So both the content of a judgment and
whether a performance counts as a judgment at all depend on social uptake.23
My point that judgment must make an appearance may seem to turn
Arendt’s thought on its head, conating the actor who initiates a perfor-
mance with the spectators who judge it. Without going into exegetical detail,
it is true that Arendt does oen appear to set up a dichotomy between the
two: action is what essentially appears, and judgment— which she regarded
as a mental faculty, apparently in accord with the tradition she called into
question24— is what makes such appearance possible by constituting a space
for it. But it is also clear, I think, that for her action and judgment cannot
be understood in abstraction from one another, that they are inherently
intertwined moments of the same practice. Aer all, if judgment did not
make an appearance to occasion further responses, it would be a dead end,
for “whatever lacks this appearance comes and passes away like a dream, inti-
mately and exclusively our own but without reality.”25
To sum up: whether you appropriately count as judging, and if so, what the
content is of your judgment, let alone whether that judgment is appropriate—
these are not subject to your control. is is not to say that judgment is just
something that befalls you; you are involved in shaping your performance,
and, of course, your own interpretation of that performance is pertinent to
what you are doing. But it is not the whole story. Knowing one’s judgment is
23 Brandom makes essentially the same point, namely that the content of performances or claims
depends on their subsequent uptake, from a Hegelian point of view, and illustrates it with reference
to common law. Brandom, Reason in Philosophy, Chapter 3; Brandom, “A Hegelian Model of Legal
Concept Determination.”
24 Albeit perhaps “the most political of man’s mental abilities.” Arendt, Responsibility and
Judgment, 188.
25 Arendt, e Human Condition, 199. She speaks elsewhere of judgment as what “makes
[thinking] manifest in the world of appearances. . . .” Arendt, Responsibility and Judgment, 189. e
apparent tension between judgment and action in Arendt has been subject to much debate, which
we need not get into here. For a more critical treatment of Arendt on this point, see Weidenfeld,
“Visions of Judgment.” And for an insightful recent account of the debate, see Marshall, “e Origin
and Character of Hannah Arendt’s eory of Judgment.”
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83
not a matter of transparent introspection.26 Everything depends on the on-
going social and political practice of interpretation. Judging legitimacy is es-
sentially something that one does among and with (or against) others: the
authorities in question and others subject to those authorities. e intersub-
jective nature of judgment means that judgments of legitimacy (i.e., polit-
ical stances vis- à- vis the authorities) are always interpreted from multiple
perspectives, and these perspectives oen dier. e way in which you un-
derstand your relation to the authorities, and the way others (not least those
authorities themselves) understand that relation, can come apart. No one’s
perspective is sovereign, which is to say that no one has full and nal say
over the content and justication of their judgment. Whether a bank robbery
spree is a form of organized crime or of resistance to the regime is a deeply
political question. And what constitutes an apt interpretation depends also
on what happens aerward— including, presumably, what one goes on to do
with the money.
3.5 e space of reasons
I’ve proposed that we consider political judgment as essentially manifested
in action. But, of course, not everything we do is a manifestation of judg-
ment. If I cough when I look at the menu, that is not usually part of judging
the restaurant. While we should avoid reducing political judgment to an
“inner” mental process, we must take care also not to reduce it to observed
“outer” behavior. But what makes certain things we do count as judgmental
performances, and others not?
A judgment is related to ongoing activity in a way that other events and
behavior are not. For one thing, it must be attributable to an agent. A sudden
downpour may incline us to choose the rst restaurant we see, but it would
be highly unusual to attribute judgment to the weather. Still, many things
26 Martin artfully illustrates the problematic self- transparency of judgment with reference to Paris,
who, asked to compare the beauty of three goddesses, was oered a bribe by each: “Presumably in
the crucial moments preceding judgment, Paris considered both the beauty of the goddesses and the
distinctive advantages of the three rewards. (Wouldn’t you?) And aer some period of such thinking
and fretting he acted, giving the apple to Aphrodite. But nothing in that sequence of events, pri-
vate and public, as yet determines the content of the judgment that was passed. Even if his inner
voice pronounced explicitly ‘Aphrodite is the most beautiful,’ we cannot rule out that this was it-
self a case of motivated self- deception or rationalization, occasioned to justify the choice that would
bring him Helen, whose seduction Aphrodite had already quite vividly described.” Martin, eories
of Judgment, 160.
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that are attributable to an agent do not count as a judgmental performance.
Something I do counts as a judgmental performance with respect to a prac-
tice only insofar as it can be interpreted as a move in that practice. Qua judg-
ment, the performance must have a bearing on what we are doing together;
otherwise, it is not a judgment of the restaurant or regime. Normally when
I cough, you are entitled not to give it a second thought with regard to the
restaurant— unless my cough is accompanied with a meaningful frown and
stare, to draw your attention to the pretentiousness of the menu.
e crucial point to recognize in this respect is that the space of appear-
ance, the in- between in which judgment can manifest itself, is a space of
reasons, not (just) causes.27 Judgment, to be properly political judgment,
must not just make an appearance. It must also be taken up in a specic way.
To interpret something as a move in a practice is to situate that performance,
and the one who performs it, in the space of reasons, rather than the space of
causes. at is to say: judging is a rational activity.
We must tread carefully here because if we explain rationality in terms
of the exercise of a specic cognitive capacity— reason, as opposed to, say,
mere inclination— we fall back into the metaphysics of intentional choice
that Arendt’s critique of sovereignty helped us to get away from. Nor should
qualifying judgment as rational be taken to imply a dismissal of the impor-
tance of aect.28 Rather, I mean to say that judgment exhibits a certain way of
relating to one another, to each other’s performances, and to one’s surround-
ings. Here, I draw on the work of pragmatists like Robert Brandom, Jürgen
Habermas, and Anthony Laden, who have developed distinctively social
conceptions of reasoning, where reasoning is conceived as a form of social
interaction: a game of giving and asking for reasons.29
According to such a picture, to call judgment rational is basically to say
that it is open to criticism. We can distinguish two aspects of this, corre-
sponding to the distinction between judgment regarded as act and as con-
tent. With regard to the act, a judgment can be understood in terms of the
27 e notion of the “space of reasons” derives from Wilfrid Sellars. I suggest that what Sellars says
about knowing also holds for judging: “[I] n characterizing an episode or a state as that of knowing,
we are not giving an empirical description of that episode or state; we are placing it in the logical
space of reasons, of justifying and being able to justify what one says.” Sellars, Empiricism and the
Philosophy of Mind, 76. For insight into the connection between the Sellarsian space of reasons and
the Arendtian space of appearance, I am indebted to J. J. McFadden. See McFadden, “e Weight of
Freedom,” Chapter 3.
28 Linda Zerilli persuasively argues that we should resist identifying judgment with either aect or
cognition. Zerilli, “e Turn to Aect and the Problem of Judgment”; cf. Laden, Reasoning, 13.
29 Brandom, Making It Explicit; Habermas, eor y of Communicative Acti on; Laden, Reasoning.
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pragmatic role it has in a practice of judging. at role is that it is something
one can be held responsible for: to judge is to be liable to normative assess-
ment.30 Recall from Chapter 2 Brandom’s conception of social practice as a
mutually- holding- one- another- to- account. To speak or act is to undertake
certain commitments— commitments to which, from someone else’s point
of view, one may or may not be entitled. One way of holding one another
responsible (aside from clubbing each other with sticks31) is to engage in
discursive practice, making these commitments explicit and disputing one’s
entitlement to them: the “game of giving and asking for reasons.” us to
speak of the space of appearance as a space of reasons in this regard is to
say, in Brandom’s terminology, that judges relate to one another as “deontic
scorekeepers.” Such scorekeepers keep multiple “sets of books”: they track
and compare the signicance of performances from their own perspective
as well as from that of the other.32 What is decisive here is not that a judging
subject actually does manifest openness to criticism by engaging in justica-
tion when challenged, but that in treating her as judging, we take her to be
capable of and committed to doing so. To be a participant, judge, or deontic
scorekeeper is to have a certain normative status.33
is points to the second sense in which judgment is rational, or open to
criticism, which is semantic rather than pragmatic. It concerns the content
of judgments. We just saw that judgments are things one can give and ask
reasons for. is means they are inferentially articulated: judgments stand
in relations of justication to other potential judgments, or reasons. In fact,
on Brandom’s inferentialist theory of meaning, these inferential connections
are just what their content consists in. In Brandomian terms, the question of
justication asks for the articulation of “upstream” commitments in light of
which someone is entitled to a commitment. Along these lines, a criterion
of legitimacy is just something that counts for or against taking an authority
to be legitimate in a particular situation (from some perspective). And the
question of content asks for the “downstream” commitments, the beliefs
and actions that a particular commitment licenses.34 e content of a prac-
tical judgment consists in what it commits one to do, what courses of action
30 For Brandom, this is Kant’s decisive idea: what is characteristic of judgments is that “they
are things knowers and agents are in a distinctive way responsible for. Judging and acting involve
commitments. ey are endorsements, exercises of authority.” Brandom, Reason in Philosophy, 32.
31 Brandom, Making It Explicit, 34.
32 Brandom, 590.
33 Cf. Anderson, “Disputing Autonomy”; Lance and White, “Stereoscopic Vision.”
34 Brandom, Articulating Reasons, 193– 94.
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it renders appropriate and inappropriate. For example, as explained in the
previous chapter, to recognize the authorities as legitimate is to undertake a
range of further political commitments (dependent on the context): to sup-
port the regime in appropriate ways, to not engage in resistance, and so on.
To attribute a particular judgment to someone is thus to share a space of
reasons with that person in a twofold sense: it is to practically relate to him or
her in a certain way, namely as an agent and a possible interlocutor with a dis-
tinct set of commitments, occupying a distinct position in a shared practice;
and to inferentially assess the content of his or her commitments, evaluating
the inferences it licenses from one’s own perspective, as well as the other’s.35
Reasons stand in inferential relations to one another, but are also indexed
to particular individuals. e notion of the space of reasons is radically per-
spectival: a judgment is attributed by someone to someone.36
What does this tell us with regard to judging legitimacy? An important
implication, for our purposes, is that judgmental contents cannot simply be
read o of external behavior. If someone hangs a picture of the president over
the dinner table, does this express their admiration for the regime and their
recognition of its legitimacy? Or, are they merely keeping up appearances,
masking their subversive activities? What is the content of their judgment of
the authorities? e answer is neither xed by their behavior, nor is it simply
a matter of their subjective intention. Rather, it depends on the broader
range of commitments that the person in question has undertaken. And be-
cause these commitments hang together in a certain way, to be able to grasp
and evaluate them involves interpreting a broader range of their claims and
actions in relation to the regime. What they are doing in putting the presi-
dent prominently on display depends also on whether they distribute revo-
lutionary propaganda at night, or read their children bedtime stories of the
president’s great achievements. And the signicance of these latter activities
may be appraised dierently from dierent points of view. In short, a judg-
ment can only be understood as situated in an ongoing course of action and
from a particular perspective.
35 Here, I roughly follow Anthony Laden’s apt way of unpacking Sellars’s metaphor of the space of
reasons. As he points out, it is a space in the mathematical sense because reasons stand in inferential
relations to one another. It is also a space in the geometrical sense: a realm where each participant
occupies a distinct position in relation to others. Laden, Reasoning, 17.
36 Compare Kukla and Lance, “Yo!” and “Lo!,” 3: “[M] eaningful speech acts are fundamentally
indexed to particular agents with particular stances, substantial relationships to other particular
agents, and locations within concrete social normative space that are ineliminably rst- and second-
personally owned by this or that living, embodied subject who has a particular point of view and is
capable of making and being bound by claims.”
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87
ere is, of course, also the further question of whether a particular judg-
ment, or a stance toward the authorities, is appropriate. e same points
apply there, with the addition that evaluating this involves articulating the
range of commitments of that person not only in the terms they themselves
acknowledge, but also from one’s own perspective, comparing what stance
they take toward the authorities (and what they take the attendant upstream
and downstream commitments to be) with one’s own stance toward those
authorities. As argued in the preceding chapter, for an authority to be legiti-
mate (from some perspective) is for it to be appropriate (from that perspec-
tive) to take and treat it as legitimate.37 e dierence between an authority’s
being legitimate and merely being taken as such arises from the dierences of
perspective involved.
3.6 e space of reasons is politically constituted
e picture as developed thus far contrasts sharply with the normativist view,
in that it concerns an ongoing and intersubjective practice, rather than a mo-
ment of subjective decision, and it is essentially rst- and second- personal
rather than impersonal. is section elaborates further aspects of this notion
of judgment, explaining how our picture avoids treating norms as simply
given to judgment; the sense in which judgment is historical; the sense in
which it challenges a rigid separation of justication and application; and
what constitutes the quality of judgments— that is, what it means to judge
well. ese points are all related, and a full account depends also on the
analyses of the following chapters. But let me introduce the key ideas here.
In the normativist picture, a judge must treat as given to judgment per-
tinent facts about the situation, and norms that bear on it. ese are to be
supplied by activities that fall outside the scope of political judgment: em-
pirical inquiry and moral justication. e reective judgment approach
and the pragmatist view pursued here both regard such givenness as myth-
ical. On the reective judgment view, the pertinent norms are enigmatically
generated ex nihilo in a particular encounter with an exemplar. e view de-
veloped here likewise sees the relevant norms as in question at a moment of
37 Nota bene: and not just for it to be taken as appropriate (from that perspective). What is legiti-
mate is not reducible to what is taken as such, but what it is to be legitimate can be explained in terms
of what it is to take it as such.
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judgment, but it diers in articulating how the content and justication of
those norms are nonetheless bound up with ongoing practice.
On the view developed here, judging legitimacy is an ongoing practice of
attunement, of attempting to get a grip on the facts and salient norms, while
grappling with uncertainty and disagreement with others. at is to say, the
activities through which we develop a sense of the pertinent facts and norms
(whatever they might be) constitute part of what it is to judge legitimacy.
Facts and norms are not treated as given to judgment; they are themselves at
stake in it. And insofar as judgment is an ongoing, open- ended practice, these
facts and norms are inherently open to contestation. It is worth highlighting
here that there is no hard- and- fast separation in this respect between facts
and norms. Both are inferentially articulated in the space of reasons. Both are
part of our grip on a political situation, and this grip is not treated as given
prior to judgment, but made or achieved, insofar as it is, through judging.
e key to dispelling the myth of the given lies in combining the two
thoughts espoused in the preceding sections: the performative and ra-
tional character of judgment. Facts and norms are inferentially articulated;
they constitute a space of reasons. But this space of reasons is not simply
given. It is politically constituted through embodied, material practices. Our
judgments, as moves within the space of reasons, aect its constitution; they
alter the relevant patterns of commitments and entitlements. What counts
as a reason for what depends on our concrete social practices. As Anthony
Laden puts the point: “A space of reasons is essentially public, social, and
shareable, and thus neither the product of individual mental structures nor
merely the result of the structure of the natural world.”38 Judgment is answer-
able to, but also constitutes facts and norms; the space of reasons structures
and is structured by judgmental activity. is means that there is no political
judgment that is not mediated by judging, just as, according to Sellars’s cri-
tique of the myth of the given in epistemology, there is no knowledge that is
not mediated by knowledge.39
38 Laden, Reasoning, 17. He adds: “According to the standard picture [of reasoning], it is because
the space of reasons has a xed, objective structure that we can all enter it and it is thus public.
According to the social picture, it is the public nature of the activity of reasoning that gives rise to a
stable and formally structured space that we can inhabit together.” Laden, Reasoning, 17, n. 12. See
also the work of Quill Kukla and Mark Lance, who investigate “how speech acts alter and are enabled
by the normative structure of our concretely incarnated social world.” Kukla and Lance, “Yo!” and
“Lo!,” 1.
39 Sellars’s point was to challenge the idea that there could be a kind of rst knowledge not de-
pendent on prior knowledge, a “given” of pure reason or pure, unmediated experience, which could
serve as a foundation for justifying further knowledge. On his alternative picture, all knowing hangs
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I said earlier that the space of appearance is also a space of reasons: infer-
ential articulation and agential responsibility are conditions for a judgmental
performance to appear as such (i.e., as performance). But the point also works
the other way: the inferentially articulated space of reasons is performatively
generated, sustained, and transformed through spaces of appearance. is
point is crucial. It means that, where legitimacy is concerned, the space of
reasons is politically constituted: it is generated, sustained, and transformed
through the very activities that constitute political judgment.40 And if we
take this thought about the connection between the space of reasons and the
space of appearance seriously, we should also recognize a further point: that
the space of reasons is subject to the conditions of fragility and vulnerability
that characterize political action.
ese points will need to be unpacked and argued for each of the pertinent
dimensions of judgment (or forms of political activity), which is what Part II
of this book will attempt to do. In judging legitimacy, someone among others
(subject) relates to an authority (object) in a particular setting (surround-
ings). Each of these aspects of political reality is subject to contestation. Let
me briey foreshadow just one of these points, about the representation of
authority (Chapter 4). e key idea is a thought about the ontology of polit-
ical authorities: that they are, in a sense, nothing but appearance. We never
encounter the state as such, only actors (ocials) playing roles. Authority
appears only in virtue of being represented. Authorities exist through the
things people think or say about them. What makes it possible for a regime
to appear as, say, a parliamentary democracy or a police state is an ongoing
practice in which representations are oered and contested. is makes au-
thority inherently fragile. Its being relies on our continuing to portray it in
appropriate ways. It only works if we stick to our roles. To treat the authorities
as legitimate or illegitimate is to take part in this practice of representing au-
thority. In this sense, judgment is not only answerable to but also constitutes
its object. Construing representations of authority as given to political judg-
ment, as theorists committed to the normativist picture tend to do, is to fail
together; one can only know one thing if one knows many other things as well. Sellars, Empiricism
and the Philosophy of Mind.
40 Just as Brandom complained of John McDowell’s account of knowledge as a “standing in the
space of reasons” that it leaves out the crucial social articulation of this space, so Brandom’s account
must be supplemented by an analysis of the political forms of activity through which this social artic-
ulation is achieved (where political legitimacy is concerned). Brandom, “Knowledge and the Social
Articulation of the Space of Reasons.”
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to acknowledge this representational nature of authorities. It is to construe
their being as independent of our ongoing engagement with them. And that
is a manifestation of the myth of the given: to treat as given to judgment what
is at stake in it.
It is hopefully not hard to see now the sense in which judgment, on the
current proposal, challenges a rigid separation of justication and applica-
tion, in contrast to the normativist picture: contingent aspects of political
situations, such as representations of authority, identities, and events, aect
not just the conditions of application for independently justied principles of
legitimacy; they aect the very content and justication of salient criteria in
a particular situation.
Finally, this picture of judgment enables us to oer a dierent conception
of the quality of judgments of legitimacy. What is it to judge well or poorly?
We can see now that this has two interrelated dimensions: in addition to the
content and justication of a judgment— how the judgment ts inferentially
in the space of reasons— we should attend also to its form, the way it makes
its appearance. In other words, where the normativist picture attends only to
the propositional content of our judgments, our picture also calls attention
to our modes of involvement in a situation. e content and justication of
criteria are mediated by political activity. And they are therefore also subject
to the conditions of such political activity. e picture of a theory of legiti-
macy as consisting of criteria speciable in abstraction from these activities
thus appears deeply problematic.
e point here is not just that meaning is contextual, but also that it is
constituted through and bound up with certain forms of involvement in a
situation. Good judgment comes to be seen as a matter of the ways in which
we experience and respond to various aspects of political reality— whether
one displays, for example, awareness of the contestability of representations,
identities, and events; openness to criticism; responsiveness to others; sen-
sitivity to changing circumstances; and acknowledgment of the limits of
one’s grip on reality. We shall have to explore this further in the chapters that
fol l ow.
3.7 Conclusion
e conception of judgment proposed here casts judging legitimacy not
as a matter of applying pregiven norms to a set of neutral facts, nor as an
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91
episodic interplay of a mental faculty with an exemplary object, but as a
practice of attunement to salient aspects of political reality. It contrasts with
the normativist picture on each of the characteristic features highlighted in
Chapter 1. Judging is an ongoing, historical, rst- and second- personal per-
formance. It matters crucially who judges, where and when. Facts and norms
are at stake in judgment, rather than given to it. is is not to deny that criteria
may play a signicant role in judging well, nor to assert that it is impossible
to make them explicit, but to suggest that the quality of judgments cannot
be reduced to their propositional content, but is a matter of how they are
performed, how they make their appearance as part of an ongoing activity.
What it is for judgment to go well or poorly is understood as depending on
our modes of involvement in a situation, on the ways in which we experience
and respond to various aspects of political reality, rather than our possession
and subsequent application of the correct normative- theoretical and factual
knowledge.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0005
4
Portraying Power
4.1 Introduction
Rulers tend to make themselves inescapably visible. Via ceremonies,
celebrations, speeches, sculptures, egies imprinted on currency, or
portraits hung over the dinner table, distant rulers gure in the daily
lives of their subjects.1 A ruler must show his or her face. More precisely,
the powers that be must show some face: it may be that the public per-
sona of the leader obscures the puppet master behind the scenes, but the
puppet master cannot do without a puppet. Subjects can take these self-
presentations at face value, and see their leaders as the representatives
of the nation, guardians of the revolution, or defenders of the peace that
they purport to be.2 But they may also take the public face for a mask that
veils the true nature of the regime. e art of ruling is, in part, the art of
representing power— rendering it visible or invisible, making it appear in
one way rather than another— and the art of resisting it is the art of making
it appear in a dierent light.
e platitudinous nature of this observation notwithstanding, it is a
truth that theories of legitimacy nowadays rarely take stock of. To be sure,
no one would deny that the way in which authorities are appropriately
portrayed is pertinent to their legitimacy. On many accounts, whether the
authorities are accurately represented as a parliamentary democracy or a
police state makes a world of dierence. But in what way, exactly, does the
representation of authorities bear on their legitimacy? How should we un-
derstand the relation at the conceptual level between representing political
1 Speaking of postcolonial Africa, Achille Mbembe writes: “It is not unusual to nd the egy of
the head of state in or around people’s houses, a part of the furniture as well as a decorative object. It
is found in oces, along avenues, in airport terminals, in police stations, and in places of torture. It is
always near. One wears it. It is on people’s bodies, as when women wear the party’s cloths. In this way,
and with great attention to detail, the apparatus of state nds ways of getting into its subjects’ most
intimate spaces.” Mbembe, On the Postcolony, 121.
2 Rodney Barker observes that rulers care about their appearance not just in the eyes of their
subjects, but perhaps even more so in their own eyes. Barker, Legitimating Identities.
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authority in one way or another, and judging it to be legitimate or illegit-
imate? How, in other words, should we conceive of the relation between
judgment and its object?
While the question is not usually posed in these terms, the default view of
judging legitimacy as the application of given norms (expounded in Chapter 1)
does have an implicit response to it, which is to say that adequate representa-
tion of the authorities comes prior to judging their legitimacy. We must rst
attain a grip on political reality if we are to evaluate it correctly. e authority
in question needs to be represented accurately so that it may be seen whether
the conditions for legitimacy hold in this particular instance. us construed,
how the authorities ought to be represented and whether they are legitimate are
separate issues. Accurate description is prior to normative evaluation. On the
picture just sketched, it seems that the question of representation could, in prin-
ciple, be settled on normatively neutral terrain, before we get into more con-
tentious territory of criteria and judgments of legitimacy. Yet in struggles for
legitimacy, the portrayal of the authorities is typically hotly contested. Can theo-
retical and practical judgment be so neatly separated?
e present chapter proposes that we see the activity of portraying power as
not merely enabling but constitutive of judging legitimacy. at is to say, one
way in which the question of legitimacy manifests itself practically is as a ques-
tion of how the authorities are to be portrayed. So how authorities are appro-
priately represented and whether they are legitimate are not distinct questions.
If this makes sense, it has profound implications for what it means to judge
well: the quality of judgments cannot be understood just as a matter of applying
valid criteria to the facts at hand. Getting a grip on the facts at hand is part of
the practice of judging legitimacy, not preliminary to it. e question then
becomes: How to perform that well?
4.2 Preliminaries: e concept of representation
e concept of representation is indispensable here, but the word is also
highly ambiguous. What interests me in this chapter is the representation of
the authorities to those subject to them, not the representation of the people
by the authorities. e question is not whether and how authorities represent
the people, the nation, or the public interest, but how the powers that be are
represented to and by those they rule— as, say, an arm of global imperialism
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97
or a parliamentary democracy, a worthy elite or a gang of thugs.3 Of course,
authorities are oen represented (portrayed) as representatives (agents) of
those subject to them. But there are two dierent senses of representation at
work in the preceding sentence, and these point to two dierent forms of po-
litical activity. At an abstract level, both senses involve rendering present in
some sense what is absent in another sense.4 Still, we need to distinguish an-
alytically between acting- for- others, as the elected represent their voters and
lawyers their clients, and portraying- something- as- something, like the way
a picture represents what it is a picture of.5 e latter sense is central here.
e notion of portrayal has strongly visual connotations, but I mean to
include also discursive representations: the speeches and proclamations
made by rulers themselves, and anything that is said or thought about them.6
Believing that the king is a bastard, denying that he is answerable to the pope,
and classifying him as a monarch or a tyrant are ways of representing his rule
in one way rather than another. e claims we make or thoughts we have
about the powers that be represent those powers as being the way we take
them to be. Our focus here, then, is on portrayals of power, whether visual or
discursive.
In West Germany, “loyal citizens” and “urban guerillas” disagreed over the
very nature of that authority. At stake was, in part, whether the terms in which
authority presented itself— a parliamentary constitutional democracy— were
an adequate characterization of the relations of power that subjects actually
faced. Was it a “resilient democracy” or a “police state,” or is neither of these
terms adequate? Characterizing authority in a particular way warrants the
application of further terms, fosters expectations of its behavior, and aects
perceptions of the likely consequences of one’s own actions. For example,
whether one views the Bundesrepublik as a resilient democracy or a police
state will aect one’s view of elections being held and of the signicance of the
act of voting; one might view it, say, as a form of participation in government,
3 ere are, of course, many historical and sociological studies of the portrayal of power.
Kantorowicz’s e King’s Two Bodies is a classic.
4 is adapts Hanna Pitkin’s formulation of representation as “the making present in some
sense of something which is nevertheless not present literally or in fact.” Pitkin, e Concept of
Representation, 8– 9.
5 I elaborate the dierence between these senses of representation in Fossen, “Constructivism and
the Logic of Political Representation.”
6 Of course, this is not to say that words themselves are pictures, or that the mind works princi-
pally through representations. Rather, representing is one of the things we can do with words. See
Brandom, Articulating Reasons, 157– 83.
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and thereby as an exercise of power, or as a farce that has no bearing on the
actual relations of power.
To say that representations in the sense just mentioned are ubiquitous in
politics is a massive understatement: representations are indispensable for
how we relate to things in general, in any social context. Any object we can
talk and think about has a ‘face,’ in that it can only appear as something or
other. If that is right, there appears to be nothing specically political about
this sense of representation. Assuming we have the capacity to talk or think
about things in general, there seems to be no particularly interesting ques-
tion as to how judgment relates to its object, where political legitimacy is
concerned. Perhaps that explains why this issue has received so little scrutiny.
But the question is well worth our attention because, as we shall see, our con-
ceptual grip on the powers that be cannot be taken for granted in the way we
take for granted our grip on tables and trac signs.7
4.3 Two initial pictures
How does the portrayal of power bear on judgments of legitimacy? It depends
on how exactly one understands judgment, representation, and legitimacy.
Our starting point was to say that judging legitimacy is (implicitly or ex-
plicitly) distinguishing in practice whether the authorities are legitimate, or
merely purport to be so. Such judgment is exhibited in the ways in which one
treats the authorities— taking to the streets, turning out to vote— and in the
claims one makes about them. Let me start with two interpretations of how
the portrayal of power gures in judging legitimacy that are unsatisfactory
but nonetheless instructive.
e rst interpretation says that to judge legitimacy just is to represent
authority in a particular way, namely as legitimate or illegitimate. If one
conceives legitimacy as a property that an authority has or fails to have in-
dependently of one’s perspective, judging legitimacy appears to be a matter
of representing it as having or lacking that property. Whether the authorities
are legitimate or not is just one of the many things there are to know about
them. So, in addition to being a democratically elected government or a cor-
rupt clique, a regime might also be legitimate or illegitimate. We then need
7 Similar considerations lead Pierre Bourdieu to call the state an “almost unthinkable” object.
Bourdieu, On the State, 3.
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99
to investigate what makes an authority legitimate or not, what its sources,
grounds, or necessary and sucient conditions are. Such an account could
then enable us to distinguish in practice between legitimate and illegitimate
regimes, by giving us a set of indicators that allow us to infer the presence
of legitimacy. is view oers a straightforward account of how judgment
can go wrong: through inaccurate representation. If the election is fraudu-
lent, and a government’s having legitimacy supervenes on its being demo-
cratically elected, it is false to represent it as being legitimate. Judgment is
construed here as the cognition of an object, and the quality of judgments
is a matter of correspondence to reality. In short, judging is representing,
representing is mirroring reality, and judging well is representing accurately.
One does not have to be skeptical about correspondence theories of truth
per se to think that this fails to capture something important about legiti-
macy claims. is view treats political judgment as an epistemic rather than
a practical matter, treating legitimacy claims as descriptions. But when
a crowd yells “illegitimate” in front of a government oce, should that be
interpreted as a third- personal report about that government, or rather as a
second- personal reproach? is view ignores the performativity and second-
personal character of legitimacy claims, and thus depends on a view of the
meaning of legitimacy claims that diers radically from that espoused in
Chapter 2.
If the former interpretation rests on a conation of practical and theoret-
ical judgment, we might think that perhaps judging legitimacy is not a matter
of representing at all. is second view insists that to represent the authorities
is one thing, and to judge their legitimacy is a separate, subsequent issue.
You and I might agree that the European Union is accurately described as a
constitutional- democratic project, but disagree about whether it is therefore
legitimate. e dierence here is not in what we purport to know about the
authority in question (how we represent it), but in the stance we take toward
it; not in what we consider to be the facts about it, but what we take to be the
appropriate norms. One must rst determine what political power is like in
a particular case; then judge it to be legitimate or illegitimate. We must keep
these stages separate.
Legitimacy, on this second line of thinking, is not a property that
authorities have or fail to have, irrespective of one’s perspective on them,
which can subsequently be reected in an accurate judgment. Legitimacy is a
normative status characterizing a practical relation between an authority and
those subject to it. So judging an authority is not representing it as legitimate
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or illegitimate, but taking a stance toward it qua, say, a parliamentary democ-
racy or a police state. Standards of legitimacy are not sources or conditions
on which a property of legitimacy supervenes, but rather norms that govern
the stances that subjects ought to take toward the authorities. One might
then take the task of a theory of legitimacy to be to articulate and justify such
norms, and to construe judging in practice as a matter of applying the criteria
provided by a theory to the case at hand. So judging, on this view, involves
an appeal to two dierent kinds of things: moral principles and facts about
the case.
How does the representation of power come into this picture? It gures in
both forms of knowledge that judgment invokes. First, getting the facts about
the case right can be seen as a matter of representing it accurately. Judgment
must operate with a description of the situation at hand. is needs to be
treated as settled, before the norm can be applied. If you hold a fair distri-
bution of wealth to be a valid criterion of political legitimacy, you’ll need to
know how wealth is, in fact, distributed in the context in question. is calls
for empirical enquiry. Of course, that involves judgment of a sort, too, but
judgment of a dierent order than a judgment of legitimacy; the former is a
theoretical, the latter a practical judgment.8
Second, representation is in play in some sense also at the level of norma-
tive principles. is is because the concepts at work in those principles must
be apt to characterize the case at hand, if the principles are to apply to it in
the rst place. If we are to judge legitimacy at all, the same concepts must be
operative in the principles provided by political philosophy, and in our em-
pirical grasp of the particular situation. So if you take it that only the consent
of the people legitimates the institution of a “state,” then that standard of le-
gitimacy is only applicable if you nd yourself confronted by something that
is adequately characterized as a state. is, as we’ll see, is no trivial matter.
A judgment of legitimacy, conceived in this way, can proceed only when
both forms of knowledge are treated as given, if only for the moment. On this
picture, the representation of power is construed as prior to judgment. We
can give an adequate description of the authorities in question, and the nor-
mative standards that they ought to meet, independently of our commitment
8 Recall Onora O’Neill from Chapter 1: “When we act we may as a preliminary matter have to de-
cide how to view the situation in which we already nd ourselves, and in which we seek to act: here
reective judgement may indeed be needed. But even when reective judging is completed, and we
have determined how to view the situation, we will still need to decide what to do: and that is where
practical judgement does its work.” O’Neill, “Normativity and Practical Judgement,” 402– 03.
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101
as to the legitimacy of these authorities. e latter is supposed to follow from
the former.9
What is attractive about this two- stage (or normativist) picture in contrast
to the single stage (descriptivist) one is that it highlights both how judgment
is answerable to reality, and why it is not reducible to accurate representa-
tion. If your understanding of the authority in question is inaccurate, for
instance because you mistake a fraudulent election for a genuine one, then
your evaluation of its legitimacy will go awry as well. Still, even if we agree
that the election was fair and open, we may disagree as to the legitimacy of
the resulting government, if we are committed to dierent principles of legit-
imacy (or disagree about their application in the case in question).
But if we consider the question of legitimacy from the rst- person per-
spective of someone confronted with political power, it is striking how much
must be taken as given if judgment is to get o the ground. At the level of
facts, the picture asks us to treat the authorities as they are as a presence given
in advance of representation. e political situation and the character of the
authorities in question are epistemically accessible in a way that does not
(yet) involve judging legitimacy. e facts themselves are normatively neu-
tral, and they are present, like raw materials lying in anticipation of being
taken up. e constitution of the object of judgment (political authority)
is taken as independent from and prior to this moment of representation,
and a forteriori prior to judgment. At the level of principles, it isn’t the actual
presence of the regime that is treated as given, but rather the terms in which
it is to be represented. Ontologically and conceptually speaking, the being
of authority is taken as independent of and prior to the stance we take to-
ward it.10 Finding out what a regime is like may be very dicult (think of the
complications of nding out whether election results have been tampered
with; who is really calling the shots, etc.). But the object must be treated as
given, and the facts about it as settled, at least for the moment, if one is to ar-
rive at a legitimacy judgment. As we will see in what follows, in making these
assumptions, the picture takes as given much of what is practically at stake in
the question of legitimacy.
9 is does not entail that the justication of principles is independent of any prior judgment of
legitimacy. Particular judgments may be accorded a role in a theoretical justicatory process, as on
a reective equilibrium approach (as discussed in Chapter 1). But that process must at this stage be
considered concluded.
10 On this point, see Lefort, Democracy and Political eory, 10.
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4.4 e practice of representation
e conceptual framework developed in Part I enables us to rethink the rela-
tion between judging legitimacy and representing power. Recall the proposal
(in Chapter 3) to conceive of judging legitimacy as a complex of ongoing ac-
tivities. e idea now is simply that representing authority in the context of
a concrete encounter is one such activity. In portraying power in one way or
another, one partakes of a practice of judging legitimacy. A stance toward the
regime is always a stance toward the regime qua police state, constitutional
democracy, corrupt clique, and so on. How authority is to be portrayed is in-
tegral to what is at stake in political stance taking, and adopting, maintaining,
and shiing one’s stance is a practice of judgment. So I am proposing that
we view judging legitimacy and representing authority as conceptually
entwined. In contrast to the two- stage view, representing and judging are
not separate activities, performed in sequence. Representation is not merely
an enabling condition for judgment, but constitutive of it. By implication,
for example, if one calls the European Union a constitutional- democratic
project from a practical standpoint, one partakes in judging its legitimacy.
is may seem implausible, or even a nonstarter, for two reasons. First,
two persons might both accept that the European Union is a constitutional
democracy, and yet take opposing stances toward it. So representing a re-
gime in a particular way does not settle the question of legitimacy. Second,
we can oer representations of regimes, for instance, of historical and im-
aginary ones, without practically engaging with them at all, and so without
judging legitimacy as I have been conceiving it. us, shouldn’t we keep the
notions of representation and judgment separate?
Two initial remarks may help to avoid misunderstanding. e rst is that
saying that portraying power is constitutive of judging legitimacy is not to say
that judging is reducible to representing; as the following chapters explore,
other activities are involved as well. In judging legitimacy, a subject comports
themself in relation to multiple elements of their situation: not only toward
the authorities in question, but also toward themself, other subjects, and the
surroundings. Our sharing of a portrayal of the European Union as a consti-
tutional democracy (or our rejection of it) does not by itself settle the ques-
tion of legitimacy, but it does directly speak to it. Portraying power is just one
aspect of the complex of activities that judging legitimacy consists in. As for
the second concern, the idea is not that all representing is judging legitimacy,
just that judging involves (among other things) representing a regime.
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103
To make sense of the idea that portraying power is an integral aspect of
judging legitimacy, and to see why it matters, we’ll need a better grip on
the sense of representation that is involved. is is the topic of the present
section. Key here is the idea, central to the recent literature on political
representation, that representation is “constructive” or “constitutive” of
what is represented.11 e next section then eshes out what is involved in
portraying power, specically.
Recall that the term ‘judgment’ can refer to the capacity to judge, the ac-
tivity of judging, and the products of such activity. Chapter 3 argued that we
could understand particular judgments as moments in an ongoing practice
of judging. Likewise, ‘representation’ can refer to products (pictures, claims),
but also to the activity of making representations.12 So we can make an anal-
ogous move here and understand a representation as something that plays
a certain role in a practice of portrayal. What makes something a picture of
something or a claim about something is that it is taken and treated as such.13
In this spirit, Michael Saward has proposed that we think about representa-
tion as a practice of making claims to the eect that something represents
something else.14 Representing is then a process of making, receiving,
rejecting, or reiterating such claims.
Adapting Saward’s analysis, we can unpack the idea of a representa-
tional claim as involving six elements: a maker puts forward a statement,
picture, or performance (subject), which refers to something (referent) and
characterizes it in some specic way (characterization) to an audience.15 For
example, a painter (maker) presents a portrait (subject) of Churchill (ref-
erent) as a fragile old statesman (characterization). e representational
object is complex: the referent as characterized in the representation; here,
Churchill qua fragile old statesman. Claiming that x represents y as z is doing
11 is section draws on my analysis of constructivism in Fossen, “Constructivism and the Logic of
Political Representation.” See als o, for example, Disch, van de Sande, and Urbinati, e Construc tivist
Turn in Political Representation.
12 We don’t ordinarily speak of representation as a capacity or faculty, although we might say that
the imagination (in Dutch: voorstellingsvermogen; literally, “capacity to portray”) is the capacity to
represent things to oneself.
13 As philosopher of science Bas van Fraassen put it: “ere is no representation except in the sense
that some things are used, made or taken, to represent some things as thus or so.” Van Fraassen,
Scientic Representation, 23. I am also indebted to Tim Heysse on this point.
14 Saward, e Representative Claim.
15 Saward does not clearly distinguish between representation in the sense of acting- for- someone
and the sense of portraying- something- as- something. Here, we are concerned with the latter. Saward
overlooks the triadic structure of such representation- as: x represents y as z. e notion of the charac-
terization corrects for that. See Fossen, “Constructivism and the Logic of Political Representation.”
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two things: to denote or pick out something (what the portrayal is about, the
referent), and to present it in some specic way— to characterize it somehow,
or to “allege something” about it (as Hanna Pitkin put it).16 In this respect,
representation- as diers from representation simpliciter, in which x stands
for or acts for y without purporting to characterize it in some distinctive way
(e.g., “+ ” stands for addition in the context of an equation, but does not pur-
port to characterize addition in terms of two crossing lines).
is applies to discursive as well as visual representations- of- something-
as- something. In either case, what the referent is represented as is, of course, a
matter of interpretation. Perhaps the painter meant to portray the statesman
as pensive, rather than fragile. And what is denoted may also be question-
able. A viewer may see that the painting depicts an old man but fail to recog-
nize Churchill. Or, perhaps they take the painting to say something about the
state of Britain as a whole, not just Churchill. Portrayals are contestable both
as to what they denote and how they characterize it.
We now have all the ingredients needed to unpack representational claims
about the authorities. Here are a few examples:
1. President Morsi’s (maker) speech (subject) represents him (referent) as
the fairly elected president (characterization).
2. El- Baradei’s (maker) tweet (subject) represents President Morsi (ref-
erent) as the new pharaoh (characterization).
3. e Red Army Faction (maker) issues a communiqué (subject) to the
general public (audience) according to which the Bundesrepublik (ref-
erent) is an arm of global imperialism (characterization).
4. e demonstrator’s (maker) sign (subject) among the crowd (audi-
ence) represents the Dutch monarchy (referent) as undemocratic
(characterization).
Consider the elements in turn:
- e subject is a claim of one form or another; a statement about the
authorities, a picture of them, or a performance by them.
- e maker(s) and the audience are political actors engaged in a stance-
taking practice, making, interpreting, contesting, and reiterating claims
16 Pitkin, e Concept of Representation, 68– 69. For a useful analysis of representation- as, see
Goodman, Languages of Art, 27– 31.
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105
about the authorities. is may include ocials themselves, like Morsi
in the rst example.
- e referent is what is purportedly denoted and characterized by the rep-
resentation. In these cases, it is some form of purported authority. e
referent can be mentioned or named in some way in the claim, but the
referent itself is something that might also be characterized dierently.
- e characterization is how the referent is to be perceived, according to
the representation; what it is represented as.
- e object of the representation is the referent as characterized in the
representation, for example, the Bundesrepublik qua arm of global im-
perialism. In representations- as, the object is complex: it denotes and
characterizes the referent.
e idea that representation is constitutive of the represented must be treated
with care, because as stated, the idea is highly ambiguous. In representation-
as, there are two distinct senses of “what is represented”: the referent of a
claim and its object. Let me distinguish three increasingly far- reaching senses
in which representing- something- as- something (x represents y as z) might
be taken to constitute the represented. First, representation is constructive
in the trivial sense that it constructs a representation. It shapes what kind of
representation it is, what the referent is represented as. In this sense already,
representing is a creative and imaginative process. For the claim to succeed at
this, the audience must come to see y as z ‘within’ the representation oered.
is is the weakest sense in which a representational claim is constructive;
it posits a z- picture, and connects it to y. In other words, it constructs a rep-
resentational object. For example, a newscast might portray an election as
a massive victory for the president, even though it was, in fact, a fraud, and
the audience recognizes that the network represents the president as having
won, without necessarily buying into it.
A stronger sense in which representation- as can be constructive depends
on how the representation of y as z, interpreted as such by the audience, is
taken up by the audience: whether it is accepted as characterizing y in the
broader practical context in which the representation is oered, independ-
ently of the particular representational claim. In that case, the portrayal is
constructive not just of how y is seen in the representational object, but also
of how y is subsequently taken and treated by the audience. For example, the
audience not only sees that the news portrays the president as having won the
election, but also comes to believe and accept that the president has done so.
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In both these senses, representational claims constitute appearances: the
appearance of y as z in the representational object; and in the perception and
the activity of the audience. e dierence between these cases can be under-
stood in terms of the commitments attributed and undertaken by the audi-
ence. In the rst instance, they attribute a commitment to take or treat y as z
to the maker of the representational claim; in the second, they also undertake
such a commitment themselves.
Of course, it is one thing for y to be seen or treated as z, and another for
it to be z. e election might be portrayed and accepted as a genuine win
for the president, even though it was, in fact, fraudulent. More radically,
representation- as may sometimes be said to constitute the referent also, when
the thing denoted comes to be what it is represented as, in virtue of being
represented as such. To make this intelligible, we need to shi our focus from
the individual representational claim and its subsequent uptake by the au-
dience, to the ongoing practice of portrayal. is allows representation to
feed back into the referent. For example, a self- conscious king might, aer
seeing a portrait of himself as a majestic gure, gain condence, adjust his
posture, and comport himself dierently, becoming majestic indeed. For
this, it is crucial that the referent is practically related, as part of the audience
and as a maker of further representational claims, to the ongoing practice of
portrayal.
So “what is represented” can be both in some sense prior to representa-
tion and constructed in it. Any particular act of representing- something- as-
something still purports to denote some referent that is logically prior to it.
But whatever gures as such may well be ontologically or genealogically de-
pendent on the ongoing practice of portrayal. Arguably, political identities,
interests, roles of representative and constituency, and indeed election results
are constructed through ongoing practices of portrayal in a similar way;
these phenomena depend for their existence on an ongoing practice of being
taken and treated as such- and- such. at, I take it, is the key insight of con-
structivist theories of representation.
4.5 Faces of power
Something thus far escapes our analysis. How does power enter the picture? It
does not appear as such in any of the representational claims mentioned. We
get names and labels for agents and institutions that are then characterized in
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107
a particular way. ere is something intangible about power, and we need to
explore its relation to representation further.
e concept of power refers to the ways in which others open and close
practical possibilities for us and structure our practical horizon, and we
theirs. Chapter 2 proposed that we conceive of authority as power with a face,
making a claim. Authority is represented power; power that operates through
being represented. e account of representation oered in the previous
section rejects a dualism of power and representation, according to which
power has a reality prior to and underlying the struggle over its portrayal.
at means that, in the context of a concrete encounter, portraying power
by making, receiving, rejecting, or reiterating representational claims is also
enacting power. Representations of power purport to denote, characterize,
and thereby contribute to constituting or dissolving the ‘powers that be.’
is brings us to the key point, which is about the ontology of
authorities: that they are, in a sense, nothing but appearance, that is, reiterated
portrayals. e authorities exist qua authorities that they are in virtue of
being represented as such.17 If political authority is, by its nature, represented
power, and if representing power is part of what we do in judging the regime,
then we end up with a variation on Kant’s thought that judgment constitutes
its object. But here that is due not to the transcendental conditions for the ap-
pearance of any object as such (how claims refer to objects rather than mere
appearances), but to the political conditions for the appearance of power as
authority.
e point should not be overstated. at the practice of portrayal— the on-
going interplay of making and receiving representational claims— constitutes
its object, authority, does not mean that an individual act of portraying power
in one way or another simply makes it so. A news report cannot constitute a
fraudulent election result as a genuine victory for the president. Rather, such
an act is a move in a practice of representation in which things are taken and
treated as signifying this- and- that (as voting, counting, reporting, etc.). And
this makes the very fact that there is an election at all somewhat precarious
17 is is arguably the crux of Hobbes’s Leviathan. At the very outset, Hobbes says: “For by Art is
created that great Leviathan called a Common- wealth, or State, . . . which is but an Articiall Man”
(Leviathan, 2:16). Hobbes’s idea (in the Elements) that the body politic is “ctitious” tells us some-
thing about the nature of this art: it is brought into being by imagining it. And this is the very activity
in which Hobbes himself is engaging in writing Leviathan. Hobbes is not simply describing the state,
but trying to make us believe in it, thereby conjuring up the articial man. As Robin Douglass put it,
Hobbes sought “to cast the ction of the body politic upon the imaginations of his readers.” Douglass,
“e Body Politic ‘Is a Fictitious Body,’ ” 127. For a contrary reading, see Olsthoorn, “Leviathan Inc.”
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since it is only in virtue of this ongoing taking- and- treating- as that there is
truly an election. Likewise, you cannot change the nature of the authorities
you face by imagining they are dierent; it would be mad to think that power
can be wished away or changed at whim. e form of power can be chal-
lenged and transformed by imagining it dierently, but not unilaterally. Nor
is the idea here to deny that there is a material dimension to the practice.
Bullets red into a crowd have a material reality and eects. e point is that
their being red only appears as action of the regime (or the opposite) in
virtue of a practice of portrayal; and the regime only appears as the authority
it purports to be— a parliamentary democracy, worthy elite, what have you—
in being taken and treated as such. is means also that authority is fragile; it
requires ongoing portrayal.18
e triadic structure of representational claims implies that there are two
related but distinct aspects to the problem of representation. As noted above,
portrayals are questionable both as to what they denote and how they char-
acterize it. So on the one hand, we have the problem of characterizing rela-
tions of power: what the regime is like. Characterizing a regime is largely a
matter of representing what the regime does, what it has done, and what it
will do. And since what the regime does includes oering and responding
to portrayals of itself, what the regime is like is not independent of how it is
characterized. Whether Morsi was aptly portrayed as having declared him-
self a “new pharaoh” depends partly on what he would go on to do with his
newly appropriated powers, and on how his regime would respond to this
kind of reproach. On the other hand, there is the question of what a represen-
tational claim refers to: whether it successfully denotes a salient element of
the constellation of power in the relevant context. e issue here is whether
a representation is appropriately taken as a representation of power. ere
is always a question to whom the question of legitimacy is appropriately
addressed. I will briey elaborate these aspects in turn.
Take the slogan that epitomized the Arab uprising: “e people demand
the fall of the regime.” What is it to speak of a “regime” here? Did the removal
of Mubarak from oce also mean that the Egyptian “regime” had fallen, as
“the people” had demanded? Did the regime comprise just Mubarak and
18 James Martel makes the same point in an Althusserian vocabulary: “e systems of authority
that are produced by interpellation are not just ‘there,’ an ongoing and permanent feature of the po-
litical landscape; they are rather the results of an active and continuing set of productions that must
occur each and every day. . . . us, any break in the circuit can bring down the whole edice of power
and authority that interpellation produces (which helps explain why very oen long- lasting regimes
collapse very quickly.” Martel, e Misinterpell ated Subject , 92.
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109
his ministers, or also the bureaucracy, the governing party, the security
services, the army? ese issues were of profound practical importance.
Consider a pivotal moment in the uprising against Mubarak: the “battle of
the camel” at Tahrir Square. A group of men on camels violently stormed
the square occupied by protesters. e camel riders are oen described as
“thugs” hired by Mubarak’s governing party and therefore as an arm of the
regime.19 At the same time, the army, which stood idly by, was by and large
not held responsible for what happened, and indeed was taken by many of
the demonstrators to be on their side, in opposition to the regime they were
toppling: “the people and the army are one hand.”20 If one accepts this rep-
resentation, then indeed one should say that Mubarak’s resignation and the
military’s taking charge amounted to a regime change (though perhaps not
exactly the one demanded by the people).21 Yet in the months that followed,
persistent demonstrators emphasized the continuity between Mubarak and
the military council that followed in his wake. To them, the army leadership
was part of the same corrupt clique as the fallen president, and the change of
regime was merely cosmetic: “e gang is still ruling.”22 In the words of one
activist: “If we still have a police state, if we still have emergency law, if we still
have the constitution pretty much the same as it is, then if we had an election
in six months’ time, the situation would pretty much be the same; because
the tools of the state remain the same.”23
is example illustrates that the question of how to characterize power
has two intertwined aspects. You can ask of any particular act you encounter
whether it is an act performed on the part of the regime. And you can ask
how the regime is aptly characterized as a whole. At the general level, the
political order as a whole appears as having a certain face (or, as it might be,
a facade): the regime is made to appear as, say, a police state or a govern-
ment of the people. But authority has a face also in the guise of the persons
one encounters in concrete interactions— not just political leaders but espe-
cially the more mundane police ocers, immigration agents, civil servants,
19 Fathi, “Egypt’s ‘Battle of the Camel.’ ”
20 Khalil, “e People and the Army Are One Hand.”
21 According to Joshua Stacher, aer Mubarak’s fall the position of the army changed so signi-
cantly that we can indeed speak of a new regime. Under Mubarak the army was one among several
factors of power (next to Internal Aairs and the NDP) that were more or less equal, whereas aer
Mubarak the state apparatus as a whole became more militarized. Stacher, “Deeper Militarism in
Egypt.”
22 “Trials, Trials . . . the Gang Is Still Ruling.”
23 Khalid Abdalla in Noujaim, e Square.
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and hired thugs.24 ere is always a question of how those ocials (or un-
ocials) relate to the wider political order. ese two questions are distinct
but closely related. On the one hand, you see a person with a stick on a camel
as an agent of the regime, and the army as separate from it, against the back-
ground of certain presuppositions about the nature of that regime and ex-
pectations about its behavior. On the other hand, your interactions with
particular agents can shape your conception of the regime as a whole. Only
by interpreting the actions of particular agents as actions on the part of the
regime as such, or, alternatively, as mere incidents, steps out of character, can
we attribute intentionality and responsibility to the regime as such.
Besides attributing actions to it, characterizing the regime also involves
naming and labeling it. is raises a further issue of contention because
disputes about what a regime is like oen involve disputes about the very
meaning of the terms in which it is represented.25 Consider, for example, the
protest at the inauguration of Willem- Alexander at Dam Square (introduced
in Chapter 2). Joanna’s companion carried a sign that proclaimed, “No mon-
archy but democracy” superimposed on the Dutch national ag. is casts
as mutually exclusive what, on the self- presentation of the Dutch political
system, is compatible: (constitutional) monarchy and (parliamentary) de-
mocracy. Apparently, the demonstrators take it that one can only speak of
the regime as genuinely democratic if the monarchy is completely abolished.
A defender of the current system could counterpose that a merely ceremo-
nial king is no true monarch, and that the demonstrators are positing a false
opposition. So part of what is at issue here is the meaning of basic political
concepts such as “democracy” and “monarchy.” e practice of portraying
power is also the practice of eshing out the meaning of such terms. In po-
litical stance taking, our political concepts are at issue in a way that concepts
such as “rook” and “queen” are not while playing chess.
24 Bernardo Zacka draws our attention to these face- to- face interactions: “For all the emphasis that
theorists of the modern state have placed on its impersonal character— on the separation between
person and oce— the state, when we encounter it, does have a face. It is the face of a very particular
person, one that changes with every procedure and agency. It is a face we can grow to appreciate or
to fear, one whose expressions we scrutinize closely and whose reactions we try to anticipate; one we
try to please, sway, or distract; one to whom we express our gratitude or vent our frustration. . . . If we
are lucky enough to belong to those segments of society who do not directly depend on the state, it is
a face that can make or break our day. If we are part of society’s most disadvantaged groups, it is a face
that can make or break our lives.” Z acka, When the State Meets the Street, 240.
25 “[W] hat we see and what is there for us to see will depend on the concepts we bring to our ex-
perience. For actions and relationships and feelings and practices and institutions do not walk up to
us like elephants and stand there, gently apping their ears, clearly distinct from their surroundings
waiting to be inspected and named.” Pitkin, Wittgenstein and Justice, 115.
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Finally, let us briey turn to the issue of to whom the question of legitimacy
is to be directed. Concerning any representation, one can ask not only how it
characterizes its referent, but also what (if anything) it denotes. In our case,
the pertinent question would be: Is it a face of power or a mere facade? is
raises the question: What makes a representation a representation of power?
In the context of struggles for legitimacy, it is normally taken for granted and
le implicit that what is named and characterized as an authority represents
a salient element of the actual constellation of power. Acts of portrayal such
as those mentioned in the previous section take place against the backdrop
of a prior understanding of the relevant relations of power that remains im-
plicit. Implicit in the demand that Morsi step down, or that Mubarak’s re-
gime must fall, or that the monarchy is undemocratic, is a claim that these
names and denite descriptions denote salient elements of the constellation
of power; and that they are the proper object of legitimacy claims. Yet this
cannot simply be taken for granted.
Take the change of the constitution that was the occasion for Mohamed
El- Baradei to tweet: “Morsi today usurped all state powers and appointed
himself Egypt’s new pharaoh.”26 Since his election, Morsi had been engaged
in a struggle for power with other agencies, especially the armed forces and
the judiciary, and perhaps even the leadership of his own organization, the
Muslim Brotherhood.27 His controversial appropriation of powers was nec-
essary, in his own eyes, in order to establish unity of rule under his control.
e president’s ocial powers had, just prior to Morsi’s election, been signif-
icantly reduced by the army leadership. More pertinently, Egypt’s political
system during the era of Mubarak is oen characterized, also by Morsi, as a
“deep state.” Its tentacles extend into all layers of society, each with its own
more or less independent nerve center.28 Even aer Morsi’s election, “there
remained the tails and claws of [Mubarak’s] regime.”29 So there is a question
whether Morsi ever eectively became the “head” and attained a signicant
hold of the nerve centers of power, as the image of a pharaoh suggests. In
fact, the same question can be raised with respect to Mubarak himself, if one
takes seriously army major Haytham’s allusion, in the lm e Square, to the
army’s hand in the 2011 uprising. To the question “Did the Army protect
26 Spencer and Samaan, “Morsi Grants Himself Sweeping New Powers.”
27 A popular representation of power had it that Morsi was not in charge at all, but that he was a
puppet of the Muslim Brotherhood.
28 El Amrani, “Sightings of the Egyptian Deep State”; “President Morsi’s Post- Coup Speech.”
29 “President Morsi’s Post- Coup Speech.”
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the revolution?,” he responds: “We didn’t protect the revolution, we made it
happen. You kids don’t know anything [laughs].”30 ere is a genuine ques-
tion, therefore, to what extent Morsi (or any president, for that matter) was
ever “in power” to begin with. To what extent does the constitution give an
adequate representation of the relations of power? What if the ocial, proce-
durally legitimated order is a mere facade?
What this shows is that we cannot just take for granted that the explicit
play of legitimacy claims and counterclaims captures the relations of power
behind the scenes. e unity that we attribute to the relations of power in
which we nd ourselves, by speaking of the “state” or the “regime,” is not
simply given, but is potentially in question and must be made or achieved.
at raises the fundamental issue of whether the question of political legit-
imacy is appropriately addressed to the president, or the king. And if not,
that would mean, not simply that the relations of power fail to live up to
the posited standards of legitimacy (for instance, the democratic mandate
prescribed by the constitution), but that those standards fail to get a grip on
the situation to begin with.
If this is right, it has a further important implication. One does something
quite dierent when portraying a regime from an external standpoint than
in a concrete encounter with it. A participant’s portrayal is involved in the
relations of power it represents. It is a representation of power both in the
sense of what it is about, but also in the sense of what it consists of or partakes
in: a portrayal is itself a power play. But not every representation of a re-
gime is ipso facto a representation of power in this double sense. An external
observer’s portrayal is not operative in the very context in which the repre-
sentational claim is made; it does not enter the same eld of power relations.
us, there is a crucial dierence between a portrait of a presently ruling
leader on display over the dinner table, and a painting of a long deceased one
in a museum. In the latter case, the label might tell us that the portrait is of a
historical gure who was once in a position of authority. But it cannot now
be taken to denote actual power, since the power relations in which it once
may have gured as such are no longer at play. Whether a portrayal is to be
considered a representation of power is not a matter of the properties of the
artifact, nor is it apparent in the surface structure of a representational claim.
It rather depends on how that portrayal gures in the context of an encounter
between subjects and authorities. In the case of a portrait of a monarch from
30 Noujaim, e S quare.
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a long- gone age on display in a museum, what is denoted makes no political
claim on us. It is just a picture of a dead king or queen, the residue of a past
stance- taking practice. (Unless, of course, the historical ruler still gures as
a symbol of the current regime. e decisive point is not whether the person
depicted is dead or alive.)
4.6 Judging well
us far, we have examined the conceptual relation between judging legit-
imacy and portraying power. I proposed that we see the latter as integral to
the former. Portraying power, from a practical standpoint, is not a prelimi-
nary to judgment. It is not merely an enabling condition for taking a stance,
which itself remains normative neutral ground. e form that power takes,
in our situation, is at the heart of what is at issue in a struggle for legitimacy.
To portray a regime dierently than it portrays itself, while confronted with
it, is not just to oer an alternative description of it, but a second- personal
reproach.
is tells us something about what is at stake in judging legitimacy. e
question of legitimacy is, in part, a question of what the regime is like. But
what does it mean to judge well in this regard? e point here is not to try to
specify, in lieu of criteria of legitimacy, criteria for judgments of legitimacy.
Chapter 3 suggested that we think about the quality of judgment not just in
terms of the contents of particular judgments, but in terms of the form of the
activity of judging— the ways in which we experience and comport ourselves
toward political reality. So the question of good judgment appears here as a
question about the form of the practice of portrayal. What does it mean for
that practice to go well or poorly? is is a large question, and here I am only
able to oer some tentative reections.
4.6.1 Responsiveness
One way to begin thinking about this is to return to the normativist picture
of judging legitimacy and examine the form of abstraction it performs. What
gets lost in an approach to legitimacy that renders representation prior to
judgment? Section 4.3 noted that normativism treats the representation of
power as given to judgment, in a double sense. At the factual level, it treats
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authorities as unambiguously present qua authorities that they are, prior
to and independent of our judging. And at the normative level, it treats the
terms in which power is to be understood as given to judgment. But if we
consider representation as integral to judgment rather than prior to it, then
this is to take as given what is politically at stake.
is myth of the given is visible most clearly in theories of legitimacy that
treat the object of legitimacy claims as a mere terminological matter. e
theorist postulates a denition of, say, the state, government, or law, or per-
haps a classication of regimes, and then proceeds to the ‘real’ philosoph-
ical issue: What are the criteria for its legitimacy? Take Robert Paul Wol,
who denes the state as “a group of persons who have the right to exercise
supreme authority within a territory. e discovery, analysis, and demon-
stration of the forms and principles of legitimate authority— of the right to
rule— is called political philosophy.”31 Here, the concept of the state appears
as given even before political philosophy gets started. But what makes the
posited denitions of the state apt, to begin with? How does the concept
get its purchase on relations of power? In virtue of what do principles of le-
gitimacy resulting from this enquiry get their grip on a situation where le-
gitimacy is in question? Nothing, really, except the postulated meaning of
the terms.
David Estlund, to take a more recent example, is quite explicit that a philo-
sophical account of legitimacy does not need to engage with the way in which
power appears in concrete situations:
[B] rute power is not a moral thing. Like a knife, it can be used rightly or
wrongly. e moral questions about the use of knives are not much about
the details of what knives are like, and the moral questions about the uses of
power are not much about the exact nature of actual power.32
31 Wol, In Defense of Anarchism, 5. David Copp spends a bit more time on “the idea of a state” and
concludes: “e state is the system of animated institutions that govern the territory and its residents,
and that administer and enforce the legal system and carryout the programs of government.”
Copp, “e Idea of a Legitimate State,” 7. omas Christiano’s entry on ‘authority’ in the Stanford
Encyclopedia of Philosophy, which is “concerned with the philosophical issues that arise in the justi-
cation of political authority,” raises a number of moral questions about “the state,” but never examines
the notion. Fabienne Peter’s entry on ‘political legitimacy’ goes a bit further, raising “the question
which political institutions are subject to the legitimacy requirement” in light of the challenge of
globalization: “is raises the question how the concept of legitimacy may apply— beyond the nation
state and decisions made within it— to the international and global context.” Christiano, “Authority”;
Peter, “Political Legitimacy.”
32 Estlund, D emocratic Authority, 2.
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115
ere is thus no apparent need, for the purposes of a theory of legitimacy,
to attend to the specic form that power takes in a particular context. e
pertinent denitions can be settled in the abstract. But Estlund’s simile of
power as a knife already invokes a specic and contentious representation of
how power operates: as an instrument that is itself normatively neutral and is
wielded intentionally by an agent.
Compare these denitions to Václav Havel’s description of the “post-
totalitarian” regime in which he found himself:
[T] he conict between the aims of life and the aims of the system is not a
conict between two socially dened and separate communities; and only
a very generalized view . . . permits us to divide society into the rulers and
the ruled. . . . In the post- totalitarian system, this line runs de facto through
each person, for everyone in his or her own way is both a victim and a sup-
porter of the system. What we understand by the system is not, therefore,
a social order imposed by one group upon another, but rather something
which permeates the entire society and is a factor in shaping it. . . .33
If Havel’s portrayal of power in communist Czechoslovakia is apt, then
Estlund and Wol’s theories of legitimacy fail to even apply in that context
to begin with because they are about something of a dierent kind. Achille
Mbembe makes a similar point about power in postcolonial Africa:
e postcolonial potentate was thus itself a form of domination that, while
using universal techniques (a state and its apparatus), had its own internal
coherence and rationality both in the political- economic realm and in the
imaginary. It follows that the potentate’s domination must be judged in re-
lation to that rationality and not on the basis of some normative Weberian
model that nowhere exists.34
In contrast to Wol and Estlund, Havel and Mbembe treat the repre-
sentation of power as a problem that is integral to their enquiry. Of course,
their portrayals may also be disputed.35 But the point is that purporting to
33 Havel, “e Power of the Powerless,” 37.
34 Mbembe, On the Postcolony, 44.
35 Other critics of the Czechoslovakian regime characterized it precisely as a corrupt elite ruling
for its own benet, which would t better with Estlund and Wol’s denitions. Glasius, “Dissident
Writings as Political eory on Civil Society and Democracy.”
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settle this by postulating a denition obscures much of what is at stake. e
problem isn’t just that Wol and Estlund treat as an uncontroversial starting
point what are, in fact, contestable empirical assumptions. at problem
might be addressed simply by substituting dierent, less contentious prem-
ises (e.g., a broader denition of power or a dierent denition of the state),
or by buttressing those premises by further argument. e deeper problem is
that this way of theorizing legitimacy fails to even register the representation
of power as a central concern.
e issue here is not that Wol and Estlund aren’t judging at all: their
proposed denitions also partake in the practice of portraying power. Aer
all, those denitions are meant to apply also in the political situation in
which they nd themselves, and their theoretical contributions are also in
some sense political interventions. e problem is rather that they engage
in judgment while, in eect, denying that they are doing so. e manner in
which they engage in that practice fails to acknowledge its own practical in-
volvement. Instead of treating the problem of representation as a problem
to grapple with, they treat it as a preliminary, to be sorted out before the
real enquiry gets started.36 In treating the object of judgment as ontologi-
cally and conceptually given, normativism abstracts from the ways in which
that object is politically constituted and from the ways in which the terms in
which it can be understood are themselves politically at issue. is takes as
given much of what is at stake: that our concepts have purchase on power,
and that they retain that purchase irrespective of shis of context or practical
perspective.
What we see here, I submit, is a lack of what we might call responsiveness
to the conditions of one’s own judging. By responsiveness, I mean a reexive
mode of relating to one’s own judgmental activity, one that does justice to
the inherent questionability of what is being judged and acknowledges
judgment’s own involvement. Good judgment calls at the very least for
acknowledging that there is a problem, and not the kind of problem you can
solve and be done with.
36 It should be granted that many normative theorists are more attentive to the problem of rep-
resentation than Wol and Estlund. is is particularly true of theorists who see principles of le-
gitimacy (or, more typically, of justice) as “practice- dependent.” On such an approach, the content
and justication of principles that apply to a practice or institution depend on the point and pur-
pose of the practice or institution in question. Yet practice- dependence theory still casts the task
of interpreting that point and purpose as a theoretical enterprise, and authority as an object whose
presence is unproblematic and given prior to judgment. For example, Sangiovanni, “Justice and the
Priority of Politics to Morality”; Sangiovanni, “How Practices Matter”; Rossi, “Justice, Legitimacy
and (Normative) Authority for Political Realists.”
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4.6.2 Truthfulness and virtuosity
Besides responsiveness, what modes of involvement in a situation does
judgment call for? A compelling account of good judgment will need to ac-
commodate two ideas. On the one hand, representation purports to be an-
swerable to how things are with the regime in question. A portrayal is apt
in this sense if it enables the audience to see the authorities for what they
are. is points to the virtue of truthfulness— doing justice to the way things
are. On the other hand, as argued in the preceding, representation is creative.
Let us call the quality or excellence of such creative performance virtuosity.
Truthfulness and virtuosity appear contradictory: insofar as representation
is constructive of what it represents, it is hard to see how it could be answer-
able to it. e challenge, then, is to oer an account of representation as an-
swerable to political reality without denying its creativity.
e contradiction arises if we interpret truthfulness and virtuosity as
requirements on the contents of particular representations. Truthfulness
then appears to be a matter of correspondence to something pregiven, while
virtuoso creativity would appear as the generation of an exceptional appear-
ance ex nihilo. When x represents y as z, it seems that the z must correspond
to or conrm what y already was; and that x makes it so that y is z. But the
apparent contradiction dissolves if we think of truthfulness and virtuosity
not as requirements on the content of our representations, but as distinct but
complementary virtues of our involvement in the practice through which
such content is generated— without denying they can come into tension. e
notion of judgment proposed in Chapter 3 enables us to do just that because
it shis our focus from the particular moment of decision to the form of the
activity of judging. is also ts well with thinking of representation as an
ongoing practice of making, receiving, and reiterating claims.
Seen in this light, truthfulness and virtuosity are not diametrical opposites.
Representing power is a matter of getting a grip on what the regime is like,
but also of shaping (though not, of course, unilaterally) what the regime is
like. ere is no logical contradiction between trying to do justice to the way
things are while creatively partaking in shaping them. Rather than an an-
tinomy between pure receptivity and sheer spontaneity, elements of recep-
tivity and spontaneity are entwined within truthfulness and virtuosity.37We
37 For a parallel argument, in somewhat dierent terms, see Lindahl, “Authority and
Representation,” 239– 40.
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can see the entwinement of receptivity and spontaneity in truthfulness if we
consider the role of evidence in judgment- qua- representation. Insofar as
what a regime is like is a question of what the regime does, portraying power
involves interpreting and disseminating evidence of actions on the part of
the regime. Jehane Noujaim’s lm e Square, which tells the story of the fall
of Mubarak and Morsi from the perspective of some of the revolutionary
activists, shows a fragment of a televised post– Mubarak but pre– Morsi
conversation between a young man and woman and a government ocial,
General Hamdy Bekheit. e youth confront the general about the army’s vi-
olence toward protesters. e young guy shows the general his laptop: “is is
a picture of a friend who took a bullet in his leg.” e general responds: “is
is not an army bullet [looking away]. It doesn’t look like one.” e salient
point here isn’t whether the general’s statement is true (which, presumably,
it is not). Rather, what interests me is the general’s comportment toward the
evidence oered. Of course, he says something in response to the protesters’
claim. But what he says, in the way he says it, sounds so ridiculous— not just
that one can tell from a picture of a wound what kind of bullet caused it, but
that one could do so without really looking— that it is dicult to take it se-
riously as an interpretation of the evidence. We should not lose sight of the
setting in which this encounter is staged, a TV studio, with an audience of
perhaps millions of viewers. e general is portraying himself, and thereby
the regime, as receptive to the concerns of activists by engaging them in dis-
cussion. Perhaps his job description is simply to present the army’s story and
to deect criticism while giving the appearance of genuinely engaging with
the youth’s concerns. Still, there might be room for a more receptive response
that could be compatible with his role. Giving the appearance of receptivity
and genuine receptivity are not the same. e general is engaging in the prac-
tice of portrayal in a way that insulates him from what is going on, rather
than allowing the images to function as potential evidence that needs some
sort of accounting for.38
Doing justice to the way things are involves a willingness to consider ev-
idence and to follow it where it leads.39 Still, the evidence doesn’t wear its
own signicance on its sleeve. Even assuming the bullets are army bullets,
do the wounds reveal something about the nature of the current regime,
38 Cf. Bert van Roermund on justice as letting something “count against” oneself: Van Roermund,
Legal ought and Philosophy.
39 Here again, I draw inspiration from Wayne Martin’s work on judgmental comportment. Martin,
eories of Judgment; Martin, “e Antinomy of Judgement, Delusion, and Twelve Angry Men.”
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119
or are they the tragic outcome of an unfortunate incident, a break with the
regime’s true character? In part, this calls for inferential work: integrating
one’s own perceptions and the testimonies of others into one’s broader range
of commitments about the regime and the world more widely, assessing
whether those claims make sense and what follows from them. e face of
power is inferentially articulated.
But by virtue of what does something appear as potential evidence of
something in the rst place? Truthfulness to the way things are with a regime
involves, besides receptivity, also spontaneity. Facts must be gathered and
disseminated if they are to function as evidence. e Square is full of other
examples, including a video posted on YouTube of Ramy Essam, the “singer
of the revolution,” displaying his bruised body as evidence of torture by the
army; lawyers trying to obtain autopsy reports at a hospital aer a massacre
of protesters; activists calling on each other to borrow digital cameras and
go lm what’s taking place in the streets, and projecting the results on a large
screen in the middle of Tahrir Square. “If people are being fooled about
what is really happening here, we must lm everything and show them the
truth. As long as there’s a camera, the revolution will continue.”40 Facts can
only appear as evidence of something if they are made to appear in the rst
place— for instance, by getting oneself on stage in a TV studio. is includes
trying to establish relations of trust. Someone tells you that the camel riders
invading the square have been paid by the governing party. But can you trust
the source? Judging legitimacy is partly a matter of deciding what television
channel to tune into.
So portraying power is not simply a matter of transferring information,
but of engaging in various political activities. And doing so truthfully is not
simply a matter of having correct beliefs about a situation, but of involvement
in it, comporting oneself practically toward evidence and toward others. For
Havel, too, “living in truth” in a post- totalitarian system is not just a matter
of cognition, refusing to believe what the regime tells you to believe, but of
building relations to others and opening up space for saying and doing things
dierently. Many people still enacted the ocial ideology in their everyday
activities, even if they did not truly believe in it. Living in truth is rather to
manifest such refusal in one’s actions:
40 Ahmed Hassan in e Square.
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anything from a letter by intellectuals to a workers’ strike, from a rock
concert to a student demonstration, from refusing to vote in the farcical
elections, to making an open speech at some ocial congress, or even a
hunger strike, for instance.41
If truthfulness is a striving to do justice to the way things are, trying to
see, and help others to see, the powers that be for what they are, then vir-
tuosity means making them appear dierently than they are. Not all rep-
resentation is about characterizing power as one takes it to be. e point
of portraying power can also be to characterize the powers that be as they
could be, will be, or as one wants them to be. Perhaps the purport of El-
Baradei’s tweet that Morsi declared himself a “new pharaoh” was less to
reveal what his regime had already become, than to ward o its becoming
the way it was portrayed.
Virtuoso representation cannot be understood as creativity ex nihilo, for
it, too, depends on being taken up and sustained by others, if it is to ‘stick’ as
a portrayal and be ecacious. A creative portrayal must still be recognizable
as being of the regime and pertinent to it. Hence just as there is spontaneity
in truthfulness, there is receptivity in virtuosity. Truthfulness and virtuosity,
then, are not diametrical opposites; virtuosity is a form of truthfulness with a
stronger emphasis on spontaneity, and vice versa.
Of course, authorities typically have vastly greater means at their dis-
posal for portraying themselves as they wish than critical subjects have for
portraying them dierently, and they oen do not look kindly on being
portrayed dierently than they see themselves. us from a practical point
of view, the room for maneuver within this practice of representation in
truthful and virtuoso ways, beyond simply reiterating the representational
claims made on behalf of the regime, may be highly restricted, and the
price for using it unbearably high. Not everyone gets released with a bou-
quet of owers shortly aer arrest (like Joanna), or enjoys the protection of
an international reputation (like El- Baradei). Yet Mbembe points to ways
in which subjects in even the most repressive regimes manifest virtuosity
by twisting the self- representations of the regime to ridicule rather than
revere it:
41 Havel, “e Power of the Powerless,” 43.
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121
However, contrary to expectations in a society so deprived of resources,
there remained considerable disparity between the images that the
state projected of itself and society, and the way people played with, and
manipulated, these images— and people did so not just well away from
ocialdom, out of earshot or sight of power, but also within the arenas
where they were publicly gathered to conrm state legitimacy. . . . When
Togolese were called upon to shout the party slogans, many would travesty
the metaphors meant to glorify state power; with a simple tonal shi, one
metaphor could take on many meanings. Under cover, therefore, of ocial
slogans, people sang about the sudden erection of the ‘enormous’ and ‘rigid’
presidential phallus, of how it remained in this position and of its contact
with ‘vaginal uids’.42
e mode of creative appropriation Mbembe describes here is less a strategy
of political change than a coping mechanism for living on in the penetrating
presence of the state. Even so, it still resists the regime’s becoming what it
wants to be by representing it dierently.
4.7 Conclusion
On the view presented in this chapter, portraying power is not a prelimi-
nary to the question of legitimacy, but goes to its heart. e question of le-
gitimacy is profoundly a matter of what power is like in a particular context.
Our grasp of the facts and norms succeeds or fails at representing power in
virtue of the ways in which we engage in an ongoing political practice: the
practice of oering, accepting, contesting, and reiterating representations
of power. Representations of power give us a precarious grip on a polit-
ical situation, but that grip is not given prior to but achieved (insofar as it
is) through judging. From a practical standpoint, the nature of the regime
cannot be settled prior to and independent of the question of its legitimacy;
in portraying it one way or another, one partakes in the practice through
which the regime is constituted as what it is. at draws our attention toward
the forms of involvement and engagement that give us a grip on the situation,
and the conditions that enable or compromise it (which I have only begun to
explore here). Good judgment is conceived here as calling for truthful and
42 Mbembe, On the Postcolony, 105– 06.
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virtuoso modes of practical involvement with the object of judgment, as well
as a reexive relation to one’s own judgmental activity. If this is compelling,
that gives us reason for thinking that the concrete encounter of subject and
authority matters for legitimacy in a way that theories of legitimacy oriented
toward codifying normative standards overlook.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0006
5
Legitimacy as an Existential Predicament
5.1 Introduction
is chapter zooms in on the role of identity in judging the legitimacy of a
regime. Among the many protesters who lled Tahrir Square on the eve of
President Mubarak’s fall was a man with a sign around his neck that read: “I
used to be afraid, now I am Egyptian.” Evidently, overcoming his fear and
speaking out against the regime were part of what Egyptianhood meant for
this man. He was far from alone. In a video that went viral in the run- up to the
demonstrations, the activist Asmaa Mahfouz announced: “I’m going out on
the twenty- h to protect my dignity as an Egyptian.” Yet nationality was not
the only identity in play. Mahfouz went on to exhort her male peers to join her
or forfeit their manliness.1 On the face of it, then, there appears to be an inti-
mate connection between people’s stances toward a regime and their sense of
who they are.2 But how should we understand this philosophically? What is
the relation, from a practical standpoint, between the questions “Who am I?”
and “Who are we?,” and the legitimacy of the regime? In struggles for legiti-
macy, does the appeal to a sense of who “I” am or who “we” are simply reect
a contingent psychological disposition, or is there some internal, conceptual
connection with political legitimacy? How, if at all, does one’s identication
with a nation, gender, or religion bear on the legitimacy of the (purported)
political authorities with which one nds oneself confronted?
e view advanced in this chapter is that the question of legitimacy is an
existential predicament: it is fundamentally a question about who you are—
both as a person, and as a member of collectivities.3 inking about judging
1 For the man with the sign: Gribbon and Hawas, “Signs and Signiers,” 109. On Mahfouz’s
video: Taha and Combs, “Of Drama and Performance,” 78.
2 Indeed, empirical scholars consider identity a key factor explaining participation in protests. See
Klandermans, “Identity Politics and Politicized Identities”; van Stekelenburg and Klandermans, “e
Social Psychology of Protest”; Tanyas, “Protest Participation and Identity- Related Dilemmas.”
3 To be clear, the claim is not that political legitimacy is reducible to a question of identity; there are
other dimensions to the problem. As the previous chapter argued, the question is also, and equally
fundamentally, about the regime, its nature, its manner of governing, what it is like.
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legitimacy as an existential predicament runs counter to the dominant ten-
dency in the literature, which seeks to ground judgments in some sense of
identity— whether it be a foundational sense of humanity, or a contingent
sense of political community. at presumes that legitimacy and identity are
separate issues. But if identity is part of what is fundamentally in question,
then the proper content of judgments of legitimacy cannot be grounded in a
prior account of who you are.
inking through this internal connection between legitimacy and iden-
tity prompts us to rethink what is involved in judging the legitimacy of
a regime— particularly what it means to judge well. I will propose that we
think about good judgment in terms of the activity of judging (rather than
the correctness of the contents of judgments), and explicate three qualities
of judgmental practice: consistency, integrity, and responsiveness. Moreover,
I suggest that recognizing these virtues in conjunction also involves
acknowledging that the question of legitimacy cannot be resolved at the
theoretical level in the sense philosophers usually aspire to (as discussed in
Chapter 1).
e role of identity in judging legitimacy is rarely discussed at a concep-
tual level, and I will try to bring this question into sharper focus (Section 5.2).
I then proceed by reconstructing three ways of conceptualizing how identity
bears on legitimacy that are implicit in the literature (Sections 5.3– 5.5): the
‘foundational,’ ‘associative,’ and ‘agonistic’ picture. Whereas the rst and
second try to ground judgments in some sense of identity— a foundational
sense of humanity, or a contingent sense of political community— the third
treats identity as a uid and contestable product of judgment. My concern is
not to debate the merits of particular theories that t under these headings,
but rather to examine how they congure the relation between identity and
legitimacy, with a particular eye to how they handle disagreement and uncer-
tainty. Consequently, the pictures are somewhat stylized, though not, I hope,
to the point of caricature. What makes it possible to put them side by side is
not that they share exactly the same denitions but that they respond to the
same pretheoretical practical predicament.
Each picture harbors a core insight, but none persuasively captures the
concrete dilemmas of judging legitimacy from a practical point of view.
Moreover, the ways they congure our key concepts— legitimacy, identity,
and judgment— are incompatible. In a dialectical fashion, the nal sections
(5.7– 5.8) propose a composite, ‘pragmatic’ picture, which integrates rational,
prudential, and ethical qualities of the practice of judging that otherwise
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125
seem inconsistent. I do not purport to refute the alternatives, nor to provide
a knockdown argument in favor of the pragmatist view. e argumentative
force in its favor derives from integrating the seemingly conicting core ideas
into a singular composite picture.
5.2 Preliminaries: Identity, subjectivity, and judgment
I begin by rening some vocabulary. If we want to understand how identity
bears on the legitimacy of a regime, we have to ask what we mean by ‘identity,’
whose identity we are talking about, and who is presumed to be judging that
regime. As to the rst, the philosophical literature on personal identity oers
an important clue. Marya Schechtman and Paul Ricoeur both point out (in dif-
ferent terms) that the question “Who?” can be understood in two related but
irreducible senses. Adapting their terminology, I’ll refer to these as selood and
character.4 To be someone, to have an identity, involves on the one hand being
a particular person, distinct from others. At issue here is a self, someone whose
being is not exhausted by his or her relation to any particular performance, but
who can be the subject of many actions and undertake a range of commitments.
Character refers to a person’s distinctive repertoire of commitments and char-
acteristics, in contrast to what is dierent or otherwise; being like this or that.
Schechtman observes that, from a rst- personal viewpoint, character refers to
what is at stake in an identity crisis, where one is deeply uncertain about who one
truly is or what one is fundamentally like.5 In contrast, selood is compromised
in cases of extreme amnesia, where one is unable to recognize a past self that one
is continuous with. More mundanely, in response to an accusation, you might
say, “It wasn’t me, it must have been someone else,” or you could say, “I wasn’t
myself— that’s not who I am.”
Whose selood and character should we be concerned with? To answer
‘political subjects’ is not suciently specic. We can distinguish at least three
pertinent meanings of the word ‘subject.’6 First, being a subject means having
4 Ricoeur speaks of sameness (idem- identity) and selood (ipse- identity); Schechtman of the
characterization question and the reidentication question. Schechtman, e Constitution of Selves,
73– 74; Ricoeur, Oneself as Another; cf. Lindahl, Fault Lines of Globalization, 82– 83.
5 Schechtman, e Constitution of Selves, 74.
6 e threefold distinction drawn here encompasses two related distinctions made by Foucault
and Althusser: Foucault contrasts being “subject to someone else by control and dependence” (gov-
ernmental) with being “tied to his own identity by a conscience or self- knowledge” (experiential and
agential), while Althusser contrasts “a center of initiatives, author of and responsible for its actions”
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a conscious experience, thinking and feeling a certain way about something,
having a perspective on the world. Call this the experiential sense of subjec-
tivity. Second, there is a governmental sense: being subjected to someone or
something— being in their thrall, being ruled. ird, and perhaps least idi-
omatically, we might speak of the subject of activity. To be the subject of an
action— more commonly referred to as the agent; hence, the agential sense—
is to be the one who performs it, to whom the activity is attributable, whose
commitments it expresses. To say that one is ‘subject’ in relation to a regime
could thus mean three things: that the authority gures in some way in one’s
consciousness; that one is governed by it; and that one acts on it in one way or
another (for instance, by complying or resisting).
ese notions do not always coincide. One can think and feel things in
connection with a regime without being subjected to it, or having any prac-
tical relation to it— for example, historical or imaginary regimes. One might
be subjected to forms of power of which one is unaware. And one might act
on a regime to which one is not subjected by supporting or undermining
it from afar. Political subjectivity in the comprehensive sense— I call this
‘thick’ subjectivity— occurs when all three aspects intersect: one nds oneself
confronted with a regime that purports to rule, and one treats the regime in
one way or another. ick subjectivity is essentially situated in a practical en-
counter with political authority.
is is crucial because it entails that it is one thing to ask about the proper
role of the identity of those subjected to a regime, in anyone’s opinions of
that regime; it is another to ask about the signicance of the rst- personal
self- understanding of a judging subject. Kant’s distinction between “deter-
mining” and “reective” judgment— discussed in Chapter 3— can help to
make this clear. Recall that in determining judgment, you have a frame of ref-
erence on hand, which could be an empirical concept or normative standard,
and you proceed to determine how a particular object or action ts within
that frame. In reective judgment, paradigmatically judgments of beauty,
you have to somehow qualify the object without having appropriate concepts
or criteria given in advance. What is important here is that what gives rise
to aesthetic judgment is the interplay between subject and object; you must
not just be subjectively aware of the object but concretely encounter it in the
world. To appreciate beauty is to experience something akin to governmental
(agential) and a “subjected being, who submits to a higher authority” (governmental). Foucault, “e
Subject and Power,” 331; Althusser, “Ideology and Ideological State Apparatuses,” 82.
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127
subjectivity: you must allow the object to hold you, as it were, in its thrall.
is is why, for Kant, you cannot intelligibly claim to judge something beau-
tiful if you have never actually encountered it, however much you learn
about it from historical sources or the testimony of others. Now, the question
for us is whether a concrete encounter between subject and authority might
have a similar signicance for the question of legitimacy as the concrete en-
counter with an artwork has (if Kant is right) for judgments of beauty. is
is a question about the form or forms of subjectivity one takes to be involved
in judging legitimacy. e views we shall discuss diverge on this, as a brief
sketch of our trajectory shows.
e foundational and associative pictures discussed below see judgment
as determining: applying a moral principle or a concept of collective self-
hood. As we shall see, it matters, for whether the regime is legitimate, how
the governed are properly characterized. As to who judges they are indif-
ferent, it does not really matter whether one judges from a practical stand-
point or from the third- person standpoint of an observer. Anyone who has
the right theory, and access to the facts, can render the correct judgment.
Judging a historical or imaginary regime is of a piece with judging a regime
one encounters in practice. is requires only a thin, experiential sense of
subjectivity.
e agonistic and pragmatic pictures invoke a thick sense of subjectivity,
and go a step further even than reective judgment. An aesthetic encounter
(again, following Kant) puts in play your mental faculties, making you feel
and think, but not act, in a distinctive way. But here, the interplay between
subject and object is a decidedly practical encounter— the judging subject
engages the regime practically by complying, engaging in resistance, and so
on. Even eeing and trying to ignore the regime are manners of comporting
oneself toward it, and can be considered manifestations of judgment. To con-
ceive judgment (in line with Chapter 3) as a complex of activities is to sug-
gest that judging is not just a matter of forming an opinion, mentally, but a
performance— hence, agential subjectivity is involved as well. Judgment so
conceived has a public character: judgment lacks worldly reality and is hence
politically meaningless if it fails to make an appearance. If judgment is taken
to involve agential subjectivity, then we are not just asking, third- personally,
how the identity of the governed bears on the legitimacy of the regime— now
the selood and character of the judging subject are on the line. And this
could give us a reason to think that the rst- personal encounter with power
matters in a way that is obscured by the other pictures. e question “Who?”
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from a rst- and second- person standpoint is potentially transformative in a
way the external point of view is not.
5.3 e foundational picture
At the heart of the foundational picture is the thought that what counts as
a valid reason for taking a regime to be legitimate or illegitimate is bound
up with who one objectively is. is imposes a requirement of consistency
between one’s political allegiance and who one is deep down. ere is an
inferential relation between identity and legitimacy. e foundational pic-
ture cashes this out by supposing that correctly judging political legitimacy
consists in applying valid moral criteria to the regime in question. e phil-
osophical task is then to provide a justication of such criteria, and that is
where identity enters the picture: such a justication will typically appeal
to a foundational identity: an account of what the governed are fundamen-
tally like— say, rights- bearing individual, autonomous agent, or social an-
imal.7 Not just any identity will do. People may have all sorts of ideas about
who they are— seeing themselves as loyal patriots, protective parents, world
citizens, and so on— and these identities could inform their relation to the
regime in dierent ways, leading them to take conicting stances. To a phil-
osophical anarchist, the national ag waving of protesters at Tahrir Square
appears as an irrational superstition, or at best as a strategic ploy. What is at
stake, they would insist, is not one’s dignity as an Egyptian but as a human
being.8 A sound philosophical theory is required to tell us what the relevant
sense of selood is, how it is to be characterized, and what criteria of legiti-
macy follow from it.
On this picture, it is principally the identity of the ruled (governmental
subjects) that bears on the legitimacy of the regime, as it is the exercise of
power over them that raises the demand for legitimation in the rst place.
e identity of the judging subject does not as such factor into the judgment,
and the standpoint of the judge— whether an engaged participant, or a third-
person observer— does not matter in principle. e type of access to the sit-
uation that is required is purely epistemic, not practical: one must have the
7 For example, Nozick, Anarchy, State, and Utopia; Wol, In Defense of Anarchi sm; Taylor,
“Atomism”; cf. Smith, “Political Obligation and the Self.”
8 us, Wol claims that national identity cannot be an appropriate ground for judgments of legiti-
macy, as it is “purely sentimental and has no objective moral basis.” Wol, In Defense of Anarchism, 19.
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correct moral standard, and the relevant facts about the situation. Judging
legitimacy requires neither governmental nor agential subjectivity, only ex-
periential subjectivity.
Let us take a closer look at one example of such a theory. Anna Stilz has
proposed a democratic theory of political legitimacy according to which
some states— those that meet requirements of democratic governance— are
legitimate, and citizens of such states owe special obligations to their state
and their fellow citizens. Stilz introduces two imaginary characters with con-
icting political stances. Sally is a loyal citizen of a democratic regime who
feels a strong sense of constitutional patriotism. A nameless maoso, on the
other hand, pledges allegiance to the Family at the expense of his fellow citi-
zens. Stilz wants to examine how— by what criteria— Sally (and we) can know
that Sally is truly bound to uphold the regime, and that the mobster is mis-
taken in feeling bound to the Family instead. Such a criterion must appeal to
something deeper than a subjective sense of belonging. Aer all, people may
feel aliation with all sorts of regimes, and criteria of legitimacy are meant
to adjudicate when such identication is appropriate. e mere fact that the
mobster identies with the maa does not render the maa legitimate. Stilz
argues that
. . . surely any liberal would want to say that the maoso has no such
obligations, and to the extent that his identity or conception of himself
leads him to think that he does, that conception is misguided, and his iden-
tity should be revised. Liberals wish, in other words, to nd a source of ex-
ternal evaluation for our identities and practices, one that appeals beyond
the self- conception of members to some further set of moral criteria.9
e moral criteria Stilz has in mind are freedom and equality. We can infer
knowledge of correct standards of legitimacy from a clear grasp of these fun-
damental values: “[W] e can show Sally’s obligations to be justied if we think
deeply enough about what the extra- institutional principles of freedom and
equality— to which liberals are already committed— really require.”10
9 Stilz, Liberal Loyalty, 19.
10 Stilz, Liberal Loyalty, 8– 9. Also, p. 9: “A successful defense of political obligations to particular
states, on my view, therefore need not appeal to any ‘brute’ moral force found in the existence of
states, to [a democratic citizen’s] common- sense intuitions, or to her felt attachments to her fellow
members or her state institutions. Instead, I think it can be discovered purely in sustained reection
about what is truly involved in guaranteeing the freedom and equality of persons.”
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Does Stilz’s approach t the foundational picture? It is clear that she casts
judgment as a matter of applying criteria.11 We can recognize that only ex-
periential, not governmental or agential subjectivity, is involved in such
judging, if we notice the shi in perspective that occurs, seemingly unprob-
lematically, in the text: “we,” third- personal observers (who supposedly
share a commitment to liberalism), are in a position to adjudicate between
Sally and the mobster in just the same way that Sally can recognize her own
subjective sense of obligation as justied. Anyone, it seems, can make this
judgment.
Anyone? Even the mobster, if only he were to “think deeply enough”? e
passages just quoted reveal a deep ambivalence about the signicance of iden-
tity. On the one hand, Stilz is suspicious of the subjective self- understandings
of both Sally and the mobster; hence, the need for something “external” to
adjudicate among the identities they nd themselves with. Yet what gets to
play the role of the “source of external evaluation” in Stilz’s argument is a
commitment to autonomy— a commitment that she takes to characterize
herself, and her presumed audience, qua liberal theorists. Yet to get a grip
on the mobster, this commitment would have to be more than something
liberals “wish” for and nd themselves “committed” to (as in the passages just
quoted). e idea is presumably that freedom and equality capture some-
thing fundamental about us as human beings, with which the mobster has
lost touch. Otherwise, our source of evaluation would not really be external
aer all, and to a mobster who does not confess himself a liberal, the call to
revise his identity will ring hollow.
Of course, Stilz does not deny that the commitment to autonomy could it-
self be called into question. I suppose she would say that this a matter of justi-
cation that goes beyond the task she sets for herself, which is more modestly
to show fellow liberals who deny the legitimacy of democratic states (such as
cosmopolitans and philosophical anarchists) that they are mistaken about
their own commitments, not to convince the mobster. Even if justication
is put o for now, the promise remains that the issue can, in principle, be re-
solved philosophically, if only we can muster the requisite eort and acumen.
Stilz is by no means the only theorist who avoids deep disagreement by de-
ferral in this way. Both Nozick and Wol remark on it, with some embarrass-
ment: Wol regards it as a “major inadequacy” that, “[t] o put it bluntly, I have
11 “What precisely is the criterion that a citizen should use to judge whether or not a particular state
is legitimate? And how does she know if she is actually under any political obligations?” Stilz, Liberal
Loyalty, 89.
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simply taken for granted an entire ethical theory,” and Nozick remarks this
challenge leaves a “yawning” gap to be lled another time— perhaps another
“lifetime.”12
In the meantime, the foundationalist remains committed to the view that
judging is a matter of applying moral standards. But notice how much must
be taken as given, on this picture, if judgment is to get o the ground. e
moment of identication— here, confessing oneself a liberal, committed
to autonomy— occurs prior to judging legitimacy and is taken for granted
therein. Ostensibly, the foundational identity from which such criteria must
be derived is contestable and stands in need of justication. But this ques-
tionability is twice removed from the practical predicament of taking a
stance toward the authorities, here and now. Doubt and dispute are relegated
to the register of justication, rather than application, which justication is
then indenitely deferred. In lieu of such a foundation, we can proceed only
with judgment by acting as if we have resolved it. is treats as given much
of what is at stake in the question of legitimacy. e picture does not oer an
account of what judging legitimacy might involve in the face of disagreement
and uncertainty.
5.4 e associative picture
e core idea of the associative picture is that it is part of the nature of a
genuine political association that governed subjects and authorities have
a certain normative standing vis- à- vis one another, just as being part of a
family involves special commitments and entitlements. is picture casts
our gaze not toward a foundational identity of the governed, constituted
and characterized independently of the contingent political relations
in which they nd themselves, but toward their identity in political rela-
tions: membership, or lack thereof, in a political community. e identity
to be considered is again that of those subjected to the regime, although the
relevant sense of selood is now thought of as contingent and collective.
is picture stresses the ontological signicance of identity: the existence
12 Wol, In Defense of Anarchism, xxviii; Nozick, Anarchy, State, and Utopia, 9. Some philosophers
have tried to ll this gap. Copp, for example, grounds his theory of legitimacy in a moral theory cen-
tered on the needs of societies. Copp, “e Idea of a Legitimate State”; Copp, Morality, Normativity,
and Society. Still, both criteria of legitimacy and their moral background remain deeply disputed.
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of political relations of a certain kind constitutes a reason for treating a re-
gime as legitimate.13
Judging legitimacy on this picture is a matter of interpreting accurately
the concrete relations of power and aliation in which governed subjects
nd themselves. To assess whether a regime is legitimate vis- à- vis those it
governs, one must look and see whether the pertinent bonds of belonging
are in place. In other words, it is a matter of gauging the presence or absence
of collective selood— the fact of membership. e act of judgment is again
conceived as determining, the dierence being the given universal here is a
concept of community rather than a moral principle. Consequently, the ac-
count is again indierent as to the judge’s standpoint. What is required, for
judgment to go well, is knowledge of the appropriate concept of community,
and epistemic access to the situation, to assess the nature of the relationships
present. e task for a theory of legitimacy is then to spell out what it means
to genuinely be a member of a political community.14
I want to raise two concerns about treating the “fact” (either presence
or absence) of membership as a given ground for judgments of legitimacy.
First, even if we take the existence of membership— the constitution of col-
lective selood— as given, this does not settle the question of how that self
is to be characterized. e national- ag- waving protesters at Tahrir Square
were undoubtedly expressing a sense of belonging, but they took this to have
the opposite practical signicance from what associativists typically argue,
invoking this identity not in support of the regime, but to demand its fall. e
regime, on the other hand, saw them as betraying their country. e content
of the practical reasons supposedly bound up with the fact of Egyptianhood
is precisely what is in contention here. Depending on the details of the
theory, the associative theorist could insist that these protesters misunder-
stand what it means to be a member of their polity (they are members; hence
bound to uphold its institutions). Alternatively, an associativist could say that
13 Here, I highlight an ontological strand in this literature, which considers genuine membership
a matter of social fact that does not require external moral validation. But associativism can also be
understood in moral terms, in which case it leads back to the foundational picture. See note 17 and
van der Vossen, “Associative Political Obligations.”
14 For Margaret Gilbert, for example, a genuine political community is a “plural subject” constituted
by a “joint commitment” on the part of its members, which involves (among other things) an ob-
ligation to uphold that community’s basic institutions. e existence of such a plural subject is a
social fact that depends on the mental states of the individuals who compose it, and explains that
those individuals have certain normative statuses. To determine whether the governed have polit-
ical obligations, we would need to see whether a joint commitment is in place. Gilbert, A eory of
Political Obligation.
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political relationships in Egypt had already broken down, such that people
can no longer see the regime as truly theirs (hence they need not consider
themselves bound to it). In neither case, however, is the fact of membership
common ground to which one can appeal to answer the question of legiti-
macy. Either way, the theorist would be taking sides in a profound political
dispute, and participants could ask: Who are you to presume to settle from
your philosopher’s chair what it means to be an Egyptian?15
e second concern is about the constitution of collective selood: Does
it make sense, from a practical standpoint, to treat the existence of member-
ship as a given fact? To probe this, we need to ask what exactly makes one a
member of a polity to begin with. ere are basically two types of view.16 e
rst is that membership is essentially an ascribed status— preeminently by
the authorities, but also by fellow citizens. Citizenship is a condition many
people nd themselves in, thrust upon them by the particular polity in which
they are born and raised. e alternative is to say that membership “must
be something more than a mere label imposed on individuals,” as Massimo
Renzo has said.17 To genuinely be a member, one must also recognize oneself
as a member, identify subjectively with the community, endorse one’s role
as citizen. Either way, if this is what it is to be a member, we can unproblem-
atically ascribe membership from a third- person standpoint. Of course, it
may be dicult, in practice, to interpret how people see themselves. But any
diculties inherent in identifying someone as a member of this or that com-
munity are merely epistemic.
e problem is that from a rst- person practical point of view, it does not
make sense to regard collective identity as a fact given to judgment in either
of these senses. Take rst the idea that being a member is being treated as a
member. It is true that, as John Horton observes, “we all start from some-
where, and that somewhere is not of our choosing.”18 But it does not follow
15 e commitments of membership are usually taken to include support for a community’s basic
institutions, and perhaps a duty to obey the law. John Horton suggests that political membership
could sometimes require opposition rather than support for the regime, and denies that his associa-
tive theory is meant to resolve this issue from a theoretical standpoint. But that raises the question of
how much work the fact of membership can really do to answer the problem of political obligation.
Horton, Political Obligation, 168.
16 Van der Vossen, “Associative Political Obligations,” 480– 81.
17 Renzo, “Associative Responsibilities and Political Obligation,” 114. ere are two ways of reading
Renzo’s point that membership must be subjectively endorsed to be “meaningful”— morally and on-
tologically. Is identication required because only if you endorse your membership are you truly a
member? Or, because only if you do so is your membership morally justied? His text oers support
for both. See Renzo, “Associative Responsibilities and Political Obligation,” 125, 121.
18 Horton, “Associative Political Obligations: Part Two,” 13.
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that we start with a determinate view of where “here” is; it requires eort
to obtain our bearings and come to grips with what appears as given. To be
sure, if you nd yourself being taken as, say, an Egyptian, this is undoubt-
edly a fact that opens and closes various practical possibilities; whether you
will be able to obtain a passport, for example. You must somehow practically
relate to being thus treated. But that does not settle, from your own prac-
tical standpoint, that you should think of yourself as an Egyptian and con-
sider yourself as part of “us Egyptians.” Suppose you were raised to think of
yourself as a loyal citizen, but a philosophical anarchist now persuades you
that this was a mistake, and to see yourself for what you truly are: a person
without a country.19 Of course, you are not denying that you still have a pass-
port, just that this generates any binding sense of belonging. From a prac-
tical standpoint, membership is a normative status, and cannot be reduced to
how you are being treated by others.20 To be fair, Horton acknowledges that
one can renounce one’s membership.21 But if membership is constituted by
being taken and treated in certain ways, this can only ever be understood as
breaking a really existing bond; the philosophical anarchist’s retrospective
realization that the bond was illusory, that one wasn’t who one took oneself to
be, becomes unintelligible.
What, then, about the view that some form of endorsement is constitutive
of genuine membership? If one accepts this, then judging legitimacy requires
looking backward at one’s past actions or attitudes to see whether one has
endorsed one’s membership in a relevant manner. But this casts one’s glance
in the wrong direction.22 e mere fact that I have taken myself as a citizen
in the past settles the question of who I truly am just as little as the fact that
others take and treat me as such. From a rst- person standpoint, the signif-
icant question is not so much “have I endorsed,” but “shall I endorse” the
19 Wol, In Defense of Anarchism, 18– 19.
20 is is a variation on a standard objection to associativism, namely that de facto membership
cannot, by itself, institute binding normative statuses. Usually, this is taken to imply that mem-
bership requires validation by “external moral principles,” which leads back to the foundationalist
picture while leaving undisputed that the fact of membership is unproblematically given to judg-
ment. Simmons, “Associative Political Obligations”; Mokrosinska, “Communal Ties and Political
Obligations.”
21 “[A] lthough membership . . . is something individuals can ultimately choose to reject, it is ini-
tially rooted in an associative relationship with an independent reality. [T]he associative relationship
exists independently of acts of acceptance or rejection.” John Horton and Ryan Gabriel Windeknecht,
“Is ere a Distinctively Associative Account of Political Obligation?” 911.
22 is point parallels Hanna Pitkin’s concern about consent theory. Pitkin, “Obligation and
Consent— II.”
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membership attributed to me? Can I go on seeing myself as the citizen I’ve
always taken myself to be?
e problem shows up clearly when Renzo draws the analogy with family
relations: “[I] f I ‘deny’ my parents, I stop occupying the role of son, and con-
sequently I stop having the obligations that normally attach to that role”
(emphasis added).23 But isn’t denying one’s parents, if they are true parents,
exactly to violate one’s obligations as a son? Alternatively, if they are not true
parents, then is not their failure to perform their parenthood rather than the
son’s denial what releases him from his obligations? It would seem, in the
latter case, that his denial merely recognizes and responds to this prior break-
down of family relations.24 To deny that one has special obligations toward
one’s parents is to deny that one is in a meaningful family relationship to
one’s parents. When you seriously doubt whether you owe anything to these
people in particular, the existence of the relationship cannot ground an an-
swer to that predicament since the nature of that relation is precisely what
hangs in the balance.
e root of the problem lies in thinking about the constitution and break-
down of political relationships as facts given to judgment, to be accurately
reected therein. First, you become who you are; next, if judgment goes well,
you recognize who you have become, with the practical commitments and
entitlements that this identity entails. is temporal sequence makes it pos-
sible to think about collective identity as a ground for judgment. Moreover,
the same judgment could, in principle, be made by anyone with epistemic ac-
cess to the situation. But this obscures the dilemma of whether or not the re-
lationship in question is genuine and is to be sustained. In a concrete struggle
for legitimacy, the nature of the relationship that obtains between a regime
and its subjects, and the attendant commitments that characterize the rela-
tion, is precisely what hangs in the balance. Membership is not the answer to
the question of legitimacy— it is part of the question.
23 Renzo, “Associative Responsibilities and Political Obligation,” 120.
24 “Choosing to deny my parents, or to disown my son, does involve an act of the will, but this act
of the will is meaningful only to the extent that it is grounded in a process of self- understanding in
which I come to realize that those ties that used to bind me to my parents or to my son are not in
place anymore.” No, it is that process of self- understanding. Renzo, “Associative Responsibilities and
Political Obligation,” 122.
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5.5 e agonistic picture
e foundational and associative pictures of how identity bears on legitimacy
have in common that they construe identity as a ground from which judg-
ment ought to depart, either in the form of a prepolitical self or a determinate
sense of membership. And they lead us to strive for philosophical knowledge
to help us recognize that ground in practice: a moral principle in the one
case, and a concept of community in the other. is aspiration for knowledge
seems hopelessly naive from a third, ‘agonistic’ perspective, which regards
selood and character (both individual and collective) as inherently contest-
able. e core idea here is that identity is never a fait accompli, but always am-
bivalent and questionable, subject to an ongoing, open- ended play of action
and response (the ancient Greek word agon means “contest or struggle”).25
We can cast this from a Foucauldian or an Arendtian angle. From a
Foucauldian point of view, selood is a product of power and a site of ten-
sion. It is a product of power in the sense that we become who we are, both
qua individuals and collectives, through being structurally taken and treated
in certain ways.26 e self is a site of tension in that the manifold relations of
power in which we nd ourselves never fully operate in unison. ey do not
completely determine our behavior but leave some, perhaps minimal, room
for unpredictable and transgressive self- overcoming.27 We could have been
dierent, and can become other than who we are by resisting who we are
taken to be— not because each of us carries a core of autonomous individu-
ality that is not subject to power, but because our involvement in struggle can
alter the balance of forces.
If power and agency constitute and characterize who we are, that casts
suspicion on the idea that there is either a true or authentic meaning of
Egyptianhood, or else a foundational sense of self, prior to judgment,
in terms of which the question of legitimacy can be resolved. Egyptians
may take themselves to oppose the regime in demanding the downfall of
Mubarak, but when they do so in the name of Egyptianhood, are they not, in
eect, reiterating and reinforcing a dominant nationalist mode of collective
25 Hans Lindahl, for example, says: “[C] ollectives exist in the mode of questionability.” Authority
and the Globalisation of Inclusion and Exclusion, 280. For an excellent overview of (democratic) ago-
nism, see Wenman, Agonistic Democracy. See also note 42.
26 Olson, “Constructing Citizens.”
27 In the words of Judith Butler: “[e] subject is itself a site of this ambivalence in which the sub-
ject emerges both as the eect of a prior power and as a condition of possibility for a radically condi-
tioned form of agency.” Butler, e Psychic Life of Power, 14– 15.
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self- understanding— with all its attendant exclusions? To the extent that na-
tionhood, gender, and human individuality are shaped or rendered politi-
cally salient by pervasive relations of power, identity appears itself as liable
to critique, and perhaps therefore more properly regarded as an object of
legitimacy claims. And insofar as by resisting who we are taken to be, we
constitute and characterize ourselves dierently, identity becomes a product
of our own judgmental activity. While Foucault avoids putting the issue in
terms of legitimacy, he is obviously ill at ease with the predominant forms
of identication to which we have been subjected— individuality as much as
nationhood.28 As identity comes into question, the ground for such critique
becomes shaky: no identity, no matter how foundational it is taken to be, is
beyond suspicion. On this picture, then, judging legitimacy consists not in
applying a given moral norm or a concept of community, but in a groundless
struggle for self- overcoming.
e Arendtian angle couches this in terms of action rather than power.
Your words and deeds constitute a response to the second- personal ques-
tion: “Who are you?”29 Because your identity as a distinct individual unfolds
over the course of a lifetime, the answer is, from a rst- and second- personal
standpoint, always provisional. And since the meaning of your actions
depends also on how they are perceived and responded to by others, how
this unfolds is not under your control— who you are is not up to you alone.30
It follows that identity is not readily available for cognition from a practical
standpoint, and to treat it as if it were is to fail to acknowledge the uncertainty
and vulnerability that characterize political agency.
Along these lines, the question what it means to be an Egyptian— would a
true Egyptian rise up, or stay loyal?— does not have a fully determinate an-
swer. e man who said “I used to be afraid, now I am Egyptian” at Tahrir
Square is not stating a fact, true or false, about what it already means to be
Egyptian. Rather, he is issuing an invitation (Arendt) or making a power
play (Foucault) to conceive Egyptianhood anew. e success of his attempt
to characterize Egyptianhood thus depends on how others will respond. If
enough individuals overcome their fear, and continue to see themselves in
28 “We have to promote new forms of subjectivity through the refusal of this kind of individuality
which has been imposed on us for several centuries.” Foucault, “e Subject and Power,” 336.
29 “Action and speech are so closely related because the primordial and specically human act
must at the same time contain the answer to the question asked of every newcomer: ‘Who are you?’ ”
Arendt, e Human Condition, 178.
30 “[N] o one is the author or producer of his own life story.” Arendt, e Human Condition, 185.
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this light, that is apparently what Egyptianhood turns out to have meant—
though again only provisionally, subject to further contestation.
is picture fundamentally recongures the relation between legitimacy and
identity. Identity appears not as a ground but as a product and as an object of
judging legitimacy: a product insofar as we become who we are through judging,
and an object insofar as our identity is politically constituted and characterized,
and hence open to further questioning. According to the agonistic picture,
judging legitimacy is an act of self- transformation. Consequently, it is crucial
who does the judging. Judging, from a practical standpoint, is to intervene in
a play of forces, or to engage in a sequence of action and response. Even if we
are prepolitically constituted as biological organisms, what renders our human
nature salient for our rst- personal understanding of who we are, and for our
stance toward the regime, is a political process, and this is a process in which
others have an irreducible part to play. Reexively engaging in this judgmental
practice involves bringing one another to see the ways in which power makes
us who we are, acknowledging the contingency of the self- conceptions we nd
ourselves with, and, through contestation, coming to see ourselves and each
other dierently. Beyond subjective awareness (experiential subjectivity), this
is essentially a matter of involvement in a practical encounter, in which the
judging subject is subjected to (governmental subjectivity) and acts on (agential
subjectivity) a constellation of power relations.
ere is a sense in which this picture places disagreement and uncertainty
about who we are at the heart of judgment since it insists that any identity
is questionable. Selood and character are at stake in judgment, rather
than given to it. Yet from a rst- personal standpoint, the idea that identity
is always contingent and contestable is itself a rather abstract consideration,
which, while casting suspicion on foundational and associative attempts
to theoretically resolve the problem, tells us little about how to practically
go on in the face of concrete dilemmas. Uncertainty and disagreement ap-
pear as conditions inherent to any sense of who I am, and for this reason,
the picture seems unable to give much orientation to judgment. Indeed, if
judgment is inherently groundless, then it appears as though the question
of legitimacy is ultimately undecidable. Unless we can nd a more complex
picture of what judging legitimacy involves, judgment may come to seem like
nothing more than a potential for arbitrary recalcitrance and directionless
self- overcoming.31
31 e agonistic picture sketched here is, of course, a simplication. Arendt certainly did not regard
judgment as arbitrary and saw promise in Kant’s notion of reective judgment for thinking about
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5.6 Intermediate conclusion
ree core ideas about the relation between identity and legitimacy can be
gleaned from our three pictures:
1. Inferential signicance of identity. What counts as a valid reason for
regarding a regime as legitimate is rationally dependent on who the
governed truly are “deep down.” e foundational picture interprets
this with the help of a split between justication and application.
Judging well is a matter of applying valid standards. Such standards
must be justied by reference to the morally signicant selood and
character of the governed, as constituted independently of the concrete
relations of power in which they nd themselves.
2. Ontological signicance of identity. e legitimacy of the exercise
of power over subjects depends ontologically on the nature of the
relationships in which subjects and authorities nd themselves. Who
you are in a political sense— that you are (not) a member of this po-
litical collectivity— determines whether the regime’s rule over you is
legitimate or illegitimate. e picture interprets this by reference to
the fact of membership. Judging well is a matter of grasping correctly
the existing relations of power and aliation the governed nd them-
selves in.
3. Questionability of identity. Who you are, personally and collectively,
does not determine the regime’s legitimacy; selood and character are
at stake in judgment rather than given to it. Selood is constituted and
characterized, always provisionally, in an ongoing practice of taking-
and- treating the regime as (il)legitimate. Judging is an act of self-
transformation that can never fully extricate itself from the relations
of power that it calls into question. e legitimacy of a regime is inher-
ently contestable and underdetermined.
Together, these ideas appear inconsistent because each approach
congures the relations among identity, legitimacy, and judgment dier-
ently. is is easily seen if we consider what a judging subject must take for
political judgment. Yet to my knowledge, the vast literature she inspired does not include a systematic
account of how to judge the legitimacy of a regime. See Arendt, Lectures on Kant’s Political Philosophy;
Feldman, “Political Judgment with a Dierence”; Zerilli, A Democratic eory of Judgment.
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granted, on each picture, if judgment is to go well. Let us assume the stand-
point of a thick subject in an encounter with a regime.
If judgment is to get o the ground, on the rst picture, I must have moral
criteria ready to hand, and for these to be valid, they must be rooted in a
correct account of my (and other subjects’) moral status. So prior to judging
legitimacy, I must gure out who I am deep down, sorting out which charac-
teristic aspects of myself (race, gender, family bonds, religion, nationhood,
humanity, etc.) are morally fundamental, and infer criteria from that self-
characterization. is is where the foundationalist’s theorizing is supposed
to help out. On the second picture, I must presume that there exists a deter-
minate fact of membership, available for cognition, and my challenge is to in-
terpret the political relations between the regime and its subjects (including
myself, coincidentally) in order to correctly recognize whether the bonds of
a genuine association are in place. is requires that I have a conception of
what a polity is, and of the commitments and entitlements that characterize
members and authorities. is is what an associative theory aims to provide.
e two pictures are deeply at odds: the foundationalist will demand that my
sense of membership be independently validated before it can institute gen-
uine normative statuses, while the associativist will insist that the appeal to a
prepolitically constituted identity is a move of abstraction that fails to appre-
ciate the nature of the situation that I nd myself in.
From a practical standpoint, this is perplexing. If judging consists in
applying a given principle or concept, and judging well requires having the
correct one, then it seems that I must suspend judgment until the philosoph-
ical dispute is sorted. Uncertainty and disagreement drive us on a quest for
philosophical knowledge. Of course, in lieu of a philosophical resolution,
one could adopt one or another view and act as if it is the correct one. But this
leaves no room for uncertainty and disagreement about who we are within
the horizon of judging legitimacy. And if, as thick subjects, we inevitably take
or treat the regime in one way or another, suspending judgment is not really
an option; our judgment will manifest itself in our comportment to the re-
gime, whether deliberate or not.
e third picture denies, in principle, that the requisite forms of knowl-
edge can be rst- personally at my disposal in the sense required. To presume
to know what it means to be a person, or what it means to be a member of
this community, is to take as given precisely what is in question. Who you
are is not constituted and characterized prior to judgment; judging shapes
who you are, it makes or breaks relationships. As a consequence, the question
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of legitimacy never nds a resolution, as the identity with which it is bound
up remains open to contestation. By depriving judgment of its ground in
one or another form of identity, this picture seems to render judgment ar-
bitrary. Who you are then seems entirely up for grabs or utterly at the mercy
of power. is makes it hard to understand how judging legitimacy could be
anything other than an aimless and interminable process of self- overcoming.
Of course, a lot more could be said to defend, rene, or refute each pic-
ture. But in what follows I want to try something else. If each of these views
captures something important, as I think they do, then it seems that judg-
ment must, yet cannot, be grounded in identity (be it personal or collective).
is paradox, as it stands, is perplexing rather than enabling; it leaves en-
tirely mysterious how one might go on and what it might mean to judge well.
Rather than arguing out the dierences among the pictures, I will try to re-
congure their key terms to make conceptual room for a manner of judging
that acknowledges disagreement and uncertainty while accommodating
their key insights.
5.7 A pragmatic picture
Can we think about judgment in the face of authority in a way that
acknowledges and responds to uncertainty and disagreement, rather than
denying or reifying them? e present section presents an alternate framing
of the signicance of identity for legitimacy, centered on a notion of judg-
ment as an ongoing and open- ended practice.
Chapter 2 conceptualized political legitimacy not as a property that
regimes have or fail to have, independently of one’s perspective on them, but
rather as a normative status essentially attributed or withheld from a practical
point of view. Claiming that a regime is legitimate is expressing a practical
stance, not representing a property. Judging legitimacy is adopting, shiing,
or maintaining a stance toward a regime. In other words, distinguishing in
practice whether the regime is legitimate is to take and treat the regime in
certain ways rather than others. In Chapter 3, I proposed that we understand
judgment as an ongoing practice— not a mental decision in which theoretical
knowledge is brought to bear on a particular situation, nor a singular trans-
formative performance, but a continuous and open- ended set of activities.
e question now is how to characterize that practice— to esh out the forms
of activity that constitute judgment (concerning legitimacy). In the current
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section, I show how rethinking judgment as a practice enables us to integrate
the core ideas of the alternative approaches in a single framework. In the
next, I argue that the shi in focus from mental act to political practice also
enables us, by drawing attention to the pragmatics of judging, to bring into
focus rational, prudential, and ethical aspects of good judgment that other-
wise remain at most partially recognized.
My suggestion now is simply that one part of the answer— one of the activ-
ities that judging legitimacy consists in— is the practice of constituting and
characterizing political selood. Here, identity gures neither as a ground,
nor as product, nor as the object of judgment. Identity is integral to judging
legitimacy; it is part of what is practically at stake, what hangs in the balance
in judging.32
is conception of judgment invokes a thick sense of subjectivity: the
judging subject is also a governed and acting subject. One nds oneself in
an encounter with a regime in which there are already certain claims as to
who one is, and one is bound to respond in one way or another. An attempt
to rule is always addressed by someone to someone. A regime attempts to
get a conceptual grip on those it subjects, characterizing them in var-
ious ways; as an aggregate of consumers of public services, a body of self-
ruling citizens, as a nation bound together by blood, soil, culture, or shared
institutions. Moreover, it typically articulates various classes of subjects (citi-
zens, residents, visitors, illegal aliens, enemy inltrators, etc.) and treats them
dierentially— as entitled to this or that, as liable to such- and- such forms of
coercion, as more or less of a threat.
ese acts of identity attribution (or “interpellation”33) on the part of the
regime call for a response— for judgment. A stance toward a regime is a re-
sponse to the ongoing attempt on the part of the regime at constituting and
characterizing a collective self. Conversely, a stance vis- à- vis the regime is
always a stance as someone. Claiming that the authorities you face are (il)
legitimate reveals something of who you take yourself to be in relation to
those authorities (and to others subjected to those authorities): that you can,
or cannot, bring yourself to see yourself as the citizen (or otherwise) you are
taken to be, and exhibit the appropriate loyalties and fulll the attendant
obligations.
32 For similar intuitions regarding the connection between identity and political judgment, see
Beiner, Political Judgment, 143– 44; Ferguson, e Politics of Judgment.
33 Althusser, “Ideology and Ideological State Apparatuses.”
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You could deny that you are a member of the collective ventured by the
authorities: “I’m not one of you” or “We are not truly a collective.” is
presupposes that you have a conception of who you are in other respects— as
a human being, Arab, woman, Muslim, father, and the like— which is incon-
sistent with that attributed by the authorities. is is what the philosoph-
ical anarchist might claim, who insists on the separateness of autonomous
individuals. Alternatively, you might arm membership, but seek to charac-
terize it dierently or try to mobilize a counter collective: “at’s not who we
are.” is may well be the upshot of the many national ags at Tahrir Square.
Or, take one of the slogans that epitomized the Arab uprising: “e people
demand the fall of the regime.” is chant not only expresses rejection of the
regime, it also says something about the self- understanding of those who
make the claim. e demonstrators are not saying: “We” demand the fall of
the regime. ey purport to speak in the name of the “people.” us, they cast
themselves as representative of a collective self, characterize that self as in-
consistent with support for the regime, and seek to mobilize others to sustain
the collective so characterized. Even unreexively going along with the ways
in which one is taken and treated is a manner of judging, for this response,
too, partakes of the same practice: it contributes to sustaining the collective
ventured by the regime, and sets an example for others.
To sum up: judging the legitimacy of a regime is to partake of a practice of
self- constitution and self- transformation, in a twofold sense: (1) It contributes
to sustaining or subverting a governed collective, as characterized in some
specic way, and (2) it seeks to associate or dissociate the judging subject’s
personal self from this collective, thus seeking to characterize oneself (and
certain others) as a member or nonmember of that collective. A judging sub-
ject ventures to constitute, sustain, or dissolve a collective of such- and- such
character, and to characterize individuals as members (or nonmembers) of
that collective. Judgment so conceived is at the nexus of “I” and “we,” of per-
sonal and collective selood. Judgment thus responds to two senses of the
question “Who?”: who is included and who is excluded; and what it means to
be included, that is, what one is included (or excluded) as.
I said that judging legitimacy is to partake of a practice of self- constitution
and self- transformation because this is not something one can achieve by
oneself (if one can say it is ever achieved at all). Self- constitution here means
the const itution of one’s (political) self by oneself as a person— but not by one-
self alone. e encounter with a regime is also an encounter with others in its
ambit, and taking a stance is taking a stance with certain others, engaging in
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collective action, forging, renewing, or breaking alliances. e question of
what stance to take is thus also a question of whom to stand with. Judgment,
so conceived, is an intersubjective practice of community building and
breaking in which no single actor is decisive.
Casting identication as integral to judging legitimacy enables us to take
up and reinterpret the core ideas of the three approaches identied in the
preceding.
1. Inferential signicance of identity. A stance toward the regime makes
sense (or fails to) in terms of who you are in other respects. But in con-
trast to the foundational view, the direction of inferences does not go
one way only. If my stance toward the regime is incompatible with an-
other aspect of who I take myself to be— a good parent, a religious be-
liever, a world citizen, and so on— I am rationally committed either to
shi my stance, or to adjust who I take myself to be in another respect.
One must esh out what it means to be oneself as a person and as a
member of collectives in the same ongoing and open- ended movement.
2. Ontological signicance of identity. e question of legitimacy is bound
up with the existence of collective selood. But ‘bound up’ in what
manner? Not in the sense that the absence or presence thereof, as a
matter of objective fact, supplies the answer to the question of legit-
imacy. From a practical standpoint, this self is never a fait accompli,
but a task to be carried through, an inherently unnished project.
Judgment does not just reect the existence of a collective self but
sustains, transforms, or dissolves it. As long as the encounter with the
regime is ongoing, its existence continues to hang in the balance.
3. Questionability of identity. From a practical standpoint, the question of
legitimacy is, in part, a question of “who I am” and “who we are” in re-
lation to the regime. is is always an open question because it depends
on how “I” and “we” carry on in the future. No identity is simply given
to judgment. is leaves judgment groundless but, as we shall see, not
without orientation.
5.8 Judging well
I have proposed that we think of judging legitimacy as partaking in a practice
of self- constitution and self- transformation. is tells us something about
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145
what is at stake in the question of legitimacy— that it is, in part, a question of
who I am, and who we are, in relation to the regime. It doesn’t tell us which
judgments we ought to make, what stance to take, who to be. Still, without
purporting to resolve that question, perhaps we can say more about the qual-
ities of the practice: What is involved in performing judgment well?
To begin, insofar as the question of legitimacy is also a question of who
to be, this implies that an account of the quality of judgment requires an ac-
count of how to shape selood and character. I will not venture a general
theory of how identity formation goes well and poorly.34 Instead, I try to
build on the core ideas of our three initial pictures, as reinterpreted in the
preceding section, and draw out three virtues of the activity of judging. I pro-
pose that judgment goes well to the degree that one’s judgmental comport-
ment manifests:
1. Consistency within and across perspectives. is is a matter of how well
your (implicit or explicit) characterization of yourself qua governed
subject meshes rationally with other aspects of your identity (as a
person and as a member of other collectives), and with who others take
you to be.
2. Integrity. is concerns the eective, material manifestation of your
selves (personal and collective) in the world— coming to be who you
take yourself to be.
3. Responsiveness. is concerns how you bear your identities and relate
to your own judgmental activity: whether your manner of comport-
ment acknowledges the inherent questionability of identity.
5.8.1 Consistency
e question of legitimacy presents us with the challenge of rationally in-
tegrating our political identity (as a member/ nonmember of a governed
collective, characterized thus- and- so) with who we are in other respects
(human being, aliate of this- or- that group, etc.). Our identities are infer-
entially articulated, but they are typically by no means fully explicit and con-
sistent, remaining to some degree implicit, fragmented, and even fractured.
34 ere is, of course, a vast literature, with which I cannot engage here. An exploration that also
reects on the role of the state is Appiah, e Ethics of Identity.
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In concrete practical situations, our dierent senses of who we are may pull
in conicting directions. On our pragmatic picture, coping with this is not a
purely cognitive challenge of thinking through and ordering hierarchically
all our various senses of who we are into a single, comprehensive whole, but
rather of dealing practically with incompatibilities as they arise, in engage-
ment with others.
Responding to such practical incompatibilities involves correlating dis-
tinct registers of commitments, across two divides:
a. Between the rst- person singular and rst- person plural (“I”— “we”).
e question here is how well, from my own point of view, my polit-
ical allegiance meshes with who I take myself to be in other respects;
whether membership in this collective, thus characterized, is some-
thing I can live with, with other aspects of who I am intact.
b. Between the rst and second person (“I”— “you”). Here, the question
is how well my sense of who I am, in personal and collective respects,
meshes with who others— not least, the regime in question— take me
to be.35
Inconsistencies call for a response along both inter- and intrasubjective
axes. Suppose you aspire to be a good parent to your children, and you think
that that involves raising them to think for themselves. Up to now, you’ve also
thought of yourself as a loyal citizen. Now the regime starts what you con-
sider to be a leadership cult, adapting school curricula to inculcate respect
for the leader and expecting loyal subjects to ingrain unquestioning obe-
dience in their children. Insofar as you remain committed to being a good
parent, and to your conception of what that involves, you cannot any longer
arm your citizenship in exactly the way this is characterized by the regime.
e two views have clashing implications, for example, for which bedtime
stories to read to the kids, which school to send them to, or what parenting
advice to give to your friends. Consequently, you need to revisit your under-
standing of what it means to be a parent and a citizen under this regime. One
option might be to say that the regime is failing to recognize you as the au-
tonomous citizen you truly are, and try to foster your kids’ critical capacities
in spite of the regime, through home schooling perhaps. Or, perhaps you nd
35 Cf. Laden, Reasoning, 237– 41. In Brandom’s terms, the former (a) concerns relations among
the commitments one acknowledges, whereas the latter (b) is a perspectival distinction between the
commitments one acknowledges and those attributed by others.
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that your commitment to individual autonomy was not as deeply held as you
thought, and that you are not willing to risk your job, or your survival. Under
these circumstances, you might conclude, keeping your family safe and pro-
viding for them is what is most important. Finally, perhaps you no longer feel
that membership in this community is something you can live with, and try
to ee with your family.
Dealing with these sorts of predicaments is partly a matter of working out
how your own commitments hang together inferentially (e.g., what bedtime
stories t with my understanding of individuality and citizenship?), revising
those commitments to obtain a better t. e core insight of the foundational
picture nds a place here: one can get a grip on the problem by thinking
through the implications of who one is. But there are several important
points of contrast. First, this inferential work is not brought to completion
prior to judging but integral to it and ongoing. Second, the direction of revi-
sion is not xed in advance. Is one’s political identity to be revised in light of
(aspects of) one’s personal identity, or the other way around? It is not simply
given that one is more fundamental than the other— to believe that is to miss
the dilemma one confronts when signicant parts of one’s self- conception
conict.
ird, the intra- and interpersonal dimensions of this predicament are
fundamentally interconnected, such that one cannot think through and
settle the matter by oneself. e categories in terms of which I think of my-
self (as a citizen, as an aspiring good parent, etc.) are public. No one has
sovereign control over what it means to be a good citizen, or a good parent.
If you think you would fail as a parent if you did not stimulate your kids to
think independently, it would be inconsistent to hold that others who in-
doctrinate their children to worship the leader are good parents. e rst-
personal question of who I am is therefore also a second- personal question
addressed to others. And this is not just a (intraperspectival) matter of who
they are, from your own point of view, but also (interperspectivally) of who
they take themselves to be, and take you to be. e vlogger who exhorted
her male peers to take to the streets or forfeit their manliness is inferring
an inconsistency between a key aspect of the self- understanding of many
of her addressees and their failure to denounce the regime. Someone who
feels the sense of pride that she appeals to but wants to resist the pull of
her inference will have to tell a dierent story about how his manliness is
compatible with his stance toward the regime. e struggle for legitimacy
at Tahrir Square was at least, in part, a struggle over the most cogent story
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about who “we” are; cogent in the sense of resonating with who each of “us”
takes themself to be in other respects.
At issue here are relations of material (in)compatibility among
commitments, meaning that the validity of inferences depends on what
the terms mean— and what they mean depends on the practices in which
they have their point and purpose.36 Drawing these inferences (from
your commitments and theirs) is not just a mental exercise of tracing
preestablished connections, which could just as well be performed in isola-
tion and abstraction from a concrete situation. It is to partake in reshaping
the meaning of the terms involved. To hang on to one’s own acknowledged
commitments in the face of signicant disagreement is to venture to trans-
form the practice of, say, citizenship (or parenthood)— striving to make sub-
jection to this regime mean something dierent than it is taken to mean,
by the regime, and perhaps the vast majority of its subjects. Inconsistency
thus calls not only for reection but also dialogue and struggle. e jour-
nalist Ashraf Khalil reports that during the reign of Mubarak, a commonly
accepted stance toward the regime among Egyptians was to “walk next to the
wall,” meaning: “Keep your head down, feed your family, and don’t stick your
nose in aairs of governance that are above your station.” Only a “noble fool”
would believe he could change a system that was “rotten to the core.”37 Our
man with the sign appears to be contesting precisely this attitude. In taking a
stance against the regime as, purportedly, an Egyptian, he is trying to relocate
“Egyptianhood” within the space of reasons. He claims that Egyptianhood is
incompatible with living in fear, which also implies that anyone who does not
overcome his or her fear and join him on the square is not a true Egyptian.
5.8.2 Integrity
Judging well is not just a matter of coping with incompatibilities among the
contents of one’s various self- conceptions. It is also a matter of concretely
manifesting one’s identities in the world. Judgment is compromised in this
respect if your judgmental activity does not, in fact, contribute to enacting
who you take yourself to be, both at individual and collective levels. By integ-
rity, I mean the extent to which your judgmental comportment contributes
36 Brandom, Making It Explicit; Laden, Reasoning; Kukla and Lance, “Yo!” and “Lo!”
37 Khalil, Liberation Square, 22, 123.
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149
to constituting and characterizing your selood as you envision it: being in-
volved in coming to be who you take yourself to be. Integrity as a quality of
judgment is thus closely related to the integrity of the self that it ventures to
constitute or sustain.
is draws attention to the way in which judging makes an appearance.
Salient about the protesters’ gambit to recharacterize Egyptianhood is not
just what they are doing, or proposing to do, with the content of what it
means to be an Egyptian. e struggle at Tahrir Square was also about what
sense of “us” would be eectively enacted. Responding to somebody else’s
call, scraping together one’s courage, and going out to proclaim that “the
people demand the fall of the regime” is a distinctive form of comportment,
and comporting oneself a certain way is judging in a certain manner. Judging
legitimacy, understood as a practice, has an inherently public character. As
governed subjects, we comport ourselves toward the regime in some manner,
and our doing so contributes, actively or passively, to the preservation, trans-
formation, or subversion of the collective the regime engenders. Going about
your daily business in a manner consistent with what the regime expects
of a loyal citizen is a way of enacting its characterization of citizenship. It
is not just a matter of opinion; if you think that this is a horrible regime, but
do not say or do anything that entitles anyone else to interpret you as dif-
ferent or other than the regime takes you to be, your comportment, in eect,
reiterates the identity attributed by the regime. e sense of publicity at issue
here is not the ideal notion of being transparent and acceptable to all rea-
sonable subjects, but of making an appearance to others, being interpretable
as taking a stance toward the regime. ere is, of course, potential political
signicance in forming opinions, but unless that opinion somehow makes
an appearance to someone else (even if only, perhaps, in bedtime stories), it
does not partake of judgment, on the view presented here.
Whether you eectively come to be who you take yourself to be depends
fundamentally on others. If you seek to dissolve the collective that the re-
gime engenders, there had better be real hope that you can sustain your
alternative identity. is commits you to some strategy of mobilization or
self- preservation to carry through your alternate take on who “we” are.38
Integrity therefore involves anticipating how people will respond and what
they can be persuaded to do. Good judgment calls for a sensibility to the
consequences of one’s actions, attunement to the balance of forces, and
38 is thought draws on Meckstroth, e Struggle for Democracy.
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acknowledging the strength of bonds of aliation. One cannot expect that
Egyptians will suddenly renounce their national aliation en masse and
think of themselves as world citizens. ere is something inevitable about
Egyptianhood being a key reference point in this context. It cannot be wished
away, although it could be made an object of long- term political struggle.
ere is an anity here with the associative picture, in that good judg-
ment should be true to the relations of power and commitment subjects nd
themselves in. But whereas associativism is backward- looking, because it
takes collective selood as an achievement prior to judgment, integrity is
conceived here as anticipatory, as a manner of involvement in a process of
becoming— and hence ineluctably insecure and uncertain.39 Judging well in
this respect is not a matter of recognizing, in a mental act, what is already in
existence, but of partaking in collective action to further the coming- to- be
of the self one envisions. ere is inherently always a risk that the venture
of collective self- constitution or self- transformation may not succeed. Who
you become may not necessarily be who you wish yourself to be. Subjects
and authorities do not stand on an equal footing in terms of the resources
they can muster; typically, these are stacked in favor of the regime, who may
have control over media, education, and other resources to mobilize people’s
sense of belonging, or their fear. Rejecting the legitimacy of the regime and
constituting a countercollective require massive mobilization. You may nd
that you cannot sustain your interpretation of what citizenship means, in the
face of overwhelming rejection of that interpretation by others. In the ab-
sence of some strategy for overcoming these obstacles, sticking with your
interpretation of collective selood regardless is wishful thinking. Integrity
may then require taking yourself to be who you are taken to be, rather than
who you wish to be.
Here too, dilemmas are at the heart of judgment because what will turn
out to be a viable sense of selood cannot be certain in advance. Failure to
muster the courage to enact who you take yourself to be would be a lack of in-
tegrity. But demanding the fall of the regime carries great risk, both to oneself
and others. So keeping one’s head down, “walking close to the wall,” could be
a thoughtful Hobbesian strategy for survival. Of course, the whole question
is who thereby survives. It may not be possible to reconcile one’s sense of one-
self with what one deems possible. Perhaps the most tragic manifestation of
this was the act of judgment that inspired many Tahrir Square protesters: the
39 I owe the notion of integrity as anticipatory to McFadden, “e Weight of Freedom.”
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151
self- immolation of Mohamed Bouazizi in Tunisia. Although his destruction
of his own body could be interpreted as a desperate abdication from self-
hood altogether, Banu Bargu makes a compelling case for understanding it
as a profoundly political act. By radically refusing to be who the authorities
took him to be, Bouazizi’s act “calls for justice precisely at the same time as
it underscores the impossibility of its realization under existing conditions.”
His judgment, apparently issuing from utter despair of achieving a personal
and political selood worth sustaining, paradoxically enacted a form of self-
hood deemed impossible in the moment, a self that “asserts agency at the mo-
ment of its abnegation.”40 Perhaps part of what inspired so many to overcome
their fear and take to the streets was that to them, in the face of his radical
“I cannot live like this,” to continue being dened, as before, by the regime,
would have been to admit that, apparently, they could.
5.8.3 Responsiveness
Even if we were to suppose that one’s judging contributes, together with
others, to sustaining a collective that is in sync with one’s sense of who one is
as a person, one’s manner of judgment may still be compromised in another
respect. ere is always potentially a tension between “I” and “we”— whether
“I” (still) genuinely belong to “us” (and to whom that is, exactly)— and be-
tween “me” and “you”— between who I take myself to be and who you take
me to be, and vice versa. is inherent questionability can be manifested in
a disagreement with someone else, or it can appear simply in recognizing
that the future is uncertain, and hence, that one could always come to see, or
be brought to see, oneself dierently. e question “Who?,” from a rst- and
second- personal standpoint, is potentially transformative.
To this condition of questionability, which is at the heart of the agonistic
picture, one can relate practically in dierent ways. We already encountered
these two divides (I– we and I— you) when discussing consistency. At issue
now, however, is not the content of one’s identities, nor their actual mani-
festation, but rather the manner in which one bears them. To see this, we
need to consider something that was presupposed in the discussion of
consistency. What makes it the case that a dierence between who I take
myself to be and who you take me to be (as it might be observed from a
40 Bargu, “Why Did Bouazizi Burn Himself?,” 33.
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third- person viewpoint, say) will register rst- and second- personally as a
disagreement, and prompt me to articulate, compare, and perhaps revisit
my commitments? Discrepancies between our perspectives appear to me as
calling for a response only on the assumption, rst, that I attribute to you a
certain standing, treating you as a judging subject with a distinct perspec-
tive on the same situation, whose commitments are to be kept track of; and
second, that I am willing to perform a kind of self- distancing to consider
how things appear from your point of view and how that bears on my own
commitments.41 Both assumptions involve acknowledging a lack of sov-
ereignty of my own point of view. And, third, all this presupposes that we
share a space in which our perspectives intersect and appear to each other
as perspectives on the same (i.e., each other’s) words and deeds. None of this
can be taken for granted in struggles for legitimacy. A regime might operate
according to its own systemic logic, treating you dierentially according to
whether it classies you as a loyal subject or a traitor, as if on autopilot—
oblivious to who you take yourself to be, registering nothing you say or do to
as an occasion for questioning.
By responsiveness, I mean to designate modes of comporting oneself
that open space for a confrontation of perspectives to take place, the out-
come of which is not xed in advance.42 is involves practically manifesting
the attitudes just described, treating oneself and others as capable of judg-
ment. It could also involve political action to elicit such attitudes from others
(despite themselves perhaps). One’s judgment is compromised for lack of
responsiveness if the way in which one bears one’s identities preempts con-
sideration of certain aspects of them or forecloses questioning by (certain)
others. is could take two forms, which we can label ‘conventionalism’ and
‘unilateralism.’ Conventionalism would be to unthinkingly take oneself to be
who one is taken to be by the regime or one’s fellows, failing to countenance
any potential gap between I and we, foreclosing the possibility of coming to
think about oneself dierently. is would still be a manner of judging, albeit
thoughtless, since you are still swept along in a practice of self- constitution
and self- transformation. You become, as it were, part of the regime’s auto-
pilot circuitry. Unilateralism would be a manner of treating others such that
41 Cf. Havercro and Owen, “Soul- Blindness, Police Orders and Black Lives Matter.”
42 e impetus for opening and maintaining space for questioning is central to agonistic writings.
See, for example, Honig, Emergency Politics; Lindahl, Authority and the Globalisation of Inclusion
and Exclusion; Markell, Bound by Recognition; Norval, Aversive Democracy; Owen, “Criticism and
Captivity: On Genealogy and Critical eory”; Rancière, Dis- Agreement; Van Roermund, Legal
ought and Philosophy.
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153
nothing they could say or do would be taken as an occasion for questioning,
acting as if the question who I am and who we are is fully settled, treating
one’s own self- conception as a xed reference point in one’s interactions. e
former mode of self- assertion places one’s own critical capacities out of play
and the latter insulates one from other perspectives. Both are manners of
judging that fail to register anything as an occasion for questioning. To do so
is to feign invulnerability.43 is invulnerability is illusory, for it presupposes
a degree of control over selood and character that is inconsistent with the
plurality of those involved in carrying it through. is is, in eect, to deny
that one is involved in judging— taking as given what is politically at stake.
at is why responsiveness is to be considered a quality of judgment.
What mode of bearing one’s identity is displayed by the man with his
sign? On the one hand, the sign could be read as a simple assertion of a
fact, reporting his discovery of the true, antecedently given meaning of
Egyptianhood, intended to settle dispute rather than invite genuine engage-
ment. But, for starters, the simple act of appearing on the square bearing a
sign is quite literally opening up a space where anyone can approach him
and ask what this is supposed to mean. Contrast that, for example, to an as-
sertion of the fearless character of the Egyptian people in a textbook for little
children. at assertion would be involved in the same practice of collective
self- characterization, but the manner in which it is asserted is not one that
invites a reexive attitude toward one’s own identication but of unilaterally
inculcating an identity as taken- for- granted. Moreover, the temporal transi-
tion is important: I used to be afraid, now I am Egyptian. is does not only
cast Egyptianhood as incompatible with living in fear, it also implies that
the man now sees himself as not having been truly Egyptian before he over-
came that fear. is could be read in dierent ways. Perhaps he has always
felt that Egyptianhood was incompatible with living in fear, only he could
never really regard himself as Egyptian before. Alternatively, perhaps he has
had a kind of epiphany: only now has it dawned on him what Egyptianhood
truly means and feels like, as if saying: “I was never really who I took my-
self to be— I see now that what I thought it meant to be Egyptian is actually
quite dierent.” Either way, the claim acknowledges that the relation between
“I” and “we” is questionable. e sign exemplies the transformation of his
self- understanding and invites others along. Anyone who took their own
Egyptianhood for granted and pays attention to the sign is now prompted to
43 Cf. Markell, Bound by Recognition.
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examine the sign’s implication that you aren’t truly Egyptian as long as you’re
living in fear.
At the same time, by announcing his self- transformation as a matter of
fact, he is taking an advance on the success of this venture, and issuing a kind
of assurance that, if only they join him, they will come to share his point of
view. Given what did happen in the years that followed— Egypt’s slide “into
the hands of the soldiers”44— it may seem, in retrospect, that these Egyptians
have not managed to reconstitute what it means to be Egyptian and to stay in
character. I do not know what became of this man. Perhaps he has concluded
that he can no longer regard himself as Egyptian, or that Egyptianhood didn’t
mean aer all what, for a moment, he came to think it meant. In any case, the
practice of judgment is still ongoing, and partaking of it in a reexive manner
calls both for realistic appraisal of the situation, and acknowledgment that
the outcome is open- ended.
5.9 Conclusion
I have proposed a pragmatic view of the signicance of identity for polit-
ical legitimacy, which casts the question of legitimacy as an existential pre-
dicament. A struggle for legitimacy is a struggle over the constitution and
characterization of collective selood, and judging legitimacy is to par-
take in such a struggle. On this picture, it matters profoundly who does the
judging: from a practical point of view, the question of legitimacy places
one’s selood and character in question. Judging legitimacy is to partake in
a practice self- constitution and self- transformation, which makes or breaks
relationships, shapes who you are in both the rst- person singular and the
rst- person plural, and is inherently open- ended. From this perspective, any
attempt to codify criteria of legitimacy is at best a partial and provisional at-
tempt to grapple with this existential predicament— a move within a practice
of self- constitution and self- transformation, not a not source of knowledge
that solves the problem.
44 Kirkpatrick, Int o the Hands of the Soldiers.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0007
6
Judgment as Timecra
6.1 Introduction
Our ambitions throughout Part II have been to examine the limits of
normativist theories of political legitimacy, to reveal what is occluded by
their preoccupation with codifying criteria, to bring into view the concrete
dilemmas involved in judging legitimacy from a practical point of view,
and to reorient our theorizing toward the modes of activity and involve-
ment through which one can engage the question of legitimacy thought-
fully. e basic diagnosis of the preceding two chapters was the same: in
construing judgment narrowly in terms of the application of given princi-
ples, normativist theories treat as given to judgment key elements of what is
at stake in it, abstracting from rather than confronting political disagreement
and uncertainty. What the regime is like, and who “we” are in relation to it,
are part of what is in question, not grounds for the correct answer. Judging
legitimacy is both a practice of portraying power and a practice of self-
constitution and self- transformation.
is last chapter extends this line of argument— this critique of the myth of
the given— along one more axis, and attempts to further esh out what is in-
volved in judging legitimacy from a practical standpoint. Having considered
the role of the object of judgment and of the identity of the judging subject
in judging political legitimacy (who judges whom (or what)?), the present
chapter tries to come to grips with what we might call the force of surround-
ings: where and when judgment occurs. It argues that the historical- material
setting in which the encounter between subject and authority is located is not
simply a xed backdrop against which judgment takes place, but a dynamic
element in the struggle. To put it dramatically, what is at stake in judging
the legitimacy of a regime is the world: judging is a practice of timecra and
place making.1
1 Or a “world- building practice,” as Linda Zerilli proposes. Zerilli, A Democratic eory of
Judgment.
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In what follows, I shall focus on the temporal dimension, approaching the
question of how surroundings gure in judging legitimacy by considering the
signicance of events. References to historical and current events abound in
the various struggles for legitimacy that we have come across thus far. e con-
frontation between the radical le and the establishment of the West German
Bundesrepublik was in large part about the legacy of the Second World War and
the Holocaust. Egyptians who demanded the fall of the regime in 2011 took
their bearings from the blaze of a Tunisian fruit salesman, Mohamed Bouazizi,
who had set himself on re. Two years later, masses of Egyptians rose up again
to demand the fall of Mubarak’s successor, Mohamed Morsi, claiming that he
had violated the spirit of the revolution that brought down Mubarak— while
Morsi justied his own claim to legitimacy by purporting to safeguard that same
revolution. More enigmatically, republicans protesting the inauguration of the
Dutch king on Dam Square invoked the hashtag “It is 2013”— not the name of
a particular event, but a reference to a moment in time nonetheless. Contested
legitimacy coincides with contested times and contested events. How should we
make sense of this apparent connection between time and legitimacy? What is
the signicance of what happened in Germany during the Second World War,
or at Tahrir Square in 2011, for the legitimacy of regimes at a later time? And
what could be the point, in protesting against the monarchy, of reminding us of
the date?
To get a grip on these questions, we need to think through the relations
among political legitimacy, judgment, and time.2 As before, the kind of judg-
ment at issue is the challenge of taking a practical stance toward the regime.
What is involved in distinguishing in practice whether a regime is legitimate
or not? Specically, for this chapter: How do events gure in such judg-
ment? I start by examining how this appears from a normativist point of view
(Section 6.2). e signicance of history for legitimacy is typically framed as
a question about the appropriate scope of criteria of legitimacy: Should po-
litical theory aspire to articulate timeless principles (universalism), or can it
2 e single study I have found that speaks directly to the relations among political legitimacy,
judgment, and time is an essay by Melissa Lane (on which I draw in the last section), which traces
historically the ways in which “conceptions of time may be invoked to explain and legitimate, or dele-
gitimate, structures of political authority.” Lane, “Political eory and Time,” 235. ere is, of course,
a much wider literature on the signicance of time and history for political theory more broadly, for
example, Pocock, “Political Ideas as Historical Events”; Hutchings, Time and World Politics; Cohen,
e Political Value of Time; Mills, “e Chronopolitics of Racial Time.” In recent years, reection on
time has been central to postcolonial thought and environmental philosophy, as noted below.
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157
claim validity only for a particular historical moment (contextualism)?3 As
we shall see, neither view can really see any signicance for events from the
practical point of view of a judging subject, confronted by power. Both forms
of normativist judgment occur seemingly out of time and place— it does not
really matter who judges where and when. is leaves no room, within the
horizon of judgment, for the following questions: Where and when are we?
What is happening here?
By contrast, the view I propose locates these questions at the heart of judg-
ment. In taking a stance toward the regime, a judging subject responds to and
partakes in events. Such judgment is therefore exposed to the disagreement
and uncertainty to which these questions (“What is happening? When are
we?”) give expression. Part of the complex of activities that judging the legit-
imacy of a regime consists in is a dimension of political activity that I shall
label ‘timecra.’ I begin developing this view (in Section 6.3) by elaborating
the temporal structure of the conception of judgment as practice proposed
in Chapter 3. at gives us a way of thinking of judgment as standing in an
open- ended practical relation to events— I call this judgment ‘in the present
progressive.’ e next step is to examine the forms of practical comportment
in and toward time that constitute judgment. is will require grappling with
the ways in which multiple timelines intersect and clash in an encounter be-
tween subjects and authorities. Section 6.4 introduces some vocabulary for
conceptualizing political time. Section 6.5 develops the notion of timecra
theoretically, and Section 6.6 illustrates it with concrete examples. Finally,
I consider what constitutes good judgment in relation to time (Section 6.7).
6.2 e standard picture: Events as xtures
Let us begin once more with the principle– application model of judgment
expounded in Chapter 1. is view leaves two potential points of entry
for events to bear on the legitimacy of a regime: one could historicize the
facts that constitute the circumstances of application for criteria of legiti-
macy, and one could (also) historicize those very criteria themselves. Let’s
call the former “universalist normativism” and the latter “contextualist
normativism,” (see Chapter 1, Figure 1.1.)
3 See Floyd and Stears, Political Philosophy versus History?; especially Kelly, “Rescuing Political
eory from the Tyranny of History.”
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Which facts about a case are salient for legitimacy may depend on what
specically happened in that particular situation. e extent to which this is
so depends on the content of the criteria. At one extreme is the a priori anar-
chist view that no form of purported political authority can, in principle, be
legitimate; or conversely, the authoritarian view that any de facto authority is
legitimate.4 On such a priori universalist views, events make no dierence,
in principle, to whether authorities are legitimate or not, although of course
contingent circumstances may aect strategic calculations as to whether re-
sistance is opportune. A regime’s origins are irrelevant to its legitimacy. Most
theories allow more leeway for judgment to vary according to circumstance.
For consent theories, for example, the correct outcome of judgment depends
on recognizing the occurrence of a certain carefully circumscribed type of
event: the voluntary expression of consent on the part of those subjected to
the regime. Hence, the theoretical importance, for theories of actual consent,
of carefully dening what exactly counts as a genuine expression of consent.
For a posteriori universalism, contingent aspects of a situation, shaped by
events, shape the circumstances of application for principles of legitimacy,
but not their meaning and justication.
Two points need to be highlighted to bring out the temporal structure of
judgment presupposed in this picture. First, at the moment of judgment,
the meaning of events is treated as xed. Events have brought about a cer-
tain state of aairs, the particulars of which judgment is then to subsume
under the general norm. Of course, things might change, and then one takes
stock of the new situation and judges again. is chronological sequencing
is clearly exhibited by Onora O’Neill (as we have already seen in Chapter 1):
When we act we may as a preliminary matter have to decide how to view the
situation in which we already nd ourselves. . . . But even when . . . we have
determined how to view the situation, we will still need to decide what to
do: and that is where practical judgement does its work.5
Practical judgment, on this picture, is quite literally an aerthought.
Second, the categories that specify which kind of event is relevant are
supplied in advance of judgment, codied in the criteria of legitimacy.
Whether events of this particular type (expressions of consent, for instance)
4 For example, Wol, In Defense of Anarchism; Hobbes, Leviathan.
5 O’Neill, “Normativity and Practical Judgement,” 402– 03.
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happened or not determines which judgment is correct (that the regime is
legitimate, or illegitimate). Judging correctly in particular cases requires
assessing whether events of the relevant kind have taken place. Of course,
criteria cannot determine their own application, and judgment is needed
still to determine whether the particulars of the case count as events of the
relevant kind. But universalist normativism only has room, at the level of
application, for what is ‘ordinary’ in the sense of tting the terms of the the-
oretically codied criteria (e.g., the absence or presence of consent), not for
something unexpected that might challenge those terms.
is stands in stark contrast to a tradition of thought, on which I draw,
which stresses the inherent contingency and unpredictability of human af-
fairs, and for which the possibility of radical novelty is fundamental. e
term ‘event’ is reserved there precisely for moments of rupture that challenge
the terms of our understanding: not just anything that happens is an event;
an event is a break with a past.6 “Events, by denition, are occurrences that
interrupt routine processes and routine procedures,” says Hannah Arendt.7
e paradigmatic example is a revolution. Genuine events are unanticipated
and inherently unpredictable, and because they potentially challenge the
terms of our understanding, it is impossible to codify a response to them in
advance. For Arendt, therefore, judgment is called on to respond to events, in
a sense that cannot be understood in terms of applying given principles.
Of course, the universalist could say that, faced with a seemingly unpar-
alleled situation, we should suspend judgment. Criteria of legitimacy, and
the terms in which they are cast, are subject to critique and revision— but to
do so is to engage in justication, not judgment. For the universalist, there
is no problem, in principle, with the idea that norms could be codied the-
oretically for every possible political situation, even if this is an ideal no ac-
tual theory lives up to. A theory of legitimacy that seems to be inapplicable
to a novel situation is just not complete. Notice, though, that this places the
burden of responding to events entirely on moral theory and empirical en-
quiry. Practical judgment so conceived is not equipped to respond to events,
let alone radical novelty— it is incapable of surprise.
6 By contrast, Donald Davidson, for example, considers anything that happens an ‘event’; it a basic
ontological category, next to things, with which the universe is replete. Davidson, Essays on Actions
and Events.
7 Arendt, Crises of the Republic, 109. Hans Lindahl explains this concept of event with high preci-
sion in Lindahl, “Possibility, Actuality, Rupture.” See for a condensed statement: Ronchi, “e Virtues
of the Virus.” See also Zerilli, “Castoriadis, Arendt, and the Problem of the New”; MacKenzie, “What
Is a Political Event?”; Totschnig, “What Is an Event?”
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e signicance of events for political legitimacy goes somewhat deeper
if one believes that they aect the content and justication of principles of
legitimacy, not just their circumstances of application. According to contex-
tualist normativism, norms are to be justied with reference to a particular
moment in history. It is simply anachronistic, one might think, to judge the
ancient Greek polis by reference to “today’s” normative standards. Criteria of
legitimacy need to be historically sensitive and attend to the particularity of
the situation.8 So a compelling justication for such standards must rely on
an account of where and when the struggle for legitimacy at issue takes place.
Contextualism so conceived diers from universalist normativism in
espousing a historicized account of justication, but not judgment. One
needs, prior to judging legitimacy, to take into account which context one
is talking about and grasp the criteria operative in it. e time and place of
the struggle for legitimacy matter, but that is not necessarily the same as the
time and place of judgment. is last point is crucial. Universalist and con-
textualist normativism have in common that the time and place of judgment
split o from the temporality of the situation in question. Applying a nor-
mative standard to a particular case could, in principle, be done from any
point in time, provided the judge has epistemic access to the requisite facts
and norms. It does not matter where or when judgment occurs— the seminar
room or the barricades.
Even though contextualist normativism arms from the very start the sig-
nicance of historical change, the problem of novelty is, if anything, even
more pressing for contextualists. Contextualism assumes as given to judg-
ment a particular sorting of historical time into distinct epochs, each with
a particular set of criteria belonging to it. If we note that struggles for legit-
imacy are oen also disagreements about appropriate standards of legiti-
macy, then contextualism suggests that some such standards are “timely” and
others not. Some of the parties in the struggle are not simply wrong but “out
8 Probably the most prominent exponent of contextualism about legitimacy is Bernard Williams,
who sums up his view with the formula: “LEG + Modernity = Liberalism.” Williams, In the Beginning
Was the Deed, 9. What “makes sense” as a convincing account of political legitimacy depends on
the historical context, and “modernity” constitutes a historical context in which only “liberalism”
(broadly construed) can be considered acceptable. It should be noted, however, that Williams did
not attempt to theoretically justify this notion of liberalism in any detail and would probably not
subscribe to the division of justication and application characteristic of what I call normativism.
David Owen proposes to read Williams’s argument as a “vindication” instead of a justication: “e
thought here is that there is a vindicatory case to be made for liberal societ y, acknowledging its many
and varied imperfections, as being better at protecting those subject to its authority from a range of
threats to life and liberty that emerge with and from the modern state.” Owen, “Realism in Ethics and
Politics,” 86.
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161
of time.” If there is a dispute about whether the monarchy is “of our time” or
not, for example, the normativist picture has no room to cope with this at
the level of judgment, which is aer all just a matter of applying criteria. So
we must suspend judgment and shi to the register of justication, to work
out the true normative core of the “modern era.” Again, there is no room,
at the level of judgment, for thinking of responding to novelty as a practical
problem.
To sum up, the picture of judgment as norm application leaves room
for two senses of historical contingency. Contextualists and universalists
alike can accommodate the contingency of the temporal foreground, the
immediate past that gave rise to the state of aairs under consideration.
Contextualists allow, in addition, for the salience of a contingent historical
background— a signicant past that informs the criteria operative in the sit-
uation in question. But judgment as such responds to neither sense of con-
tingency. Rather, judgment presupposes that the answer to the questions of
“What happened here?” or “At what historical moment does this encounter
take place?” is already available. e crucial work of interpreting events takes
place at the levels of justication and empirical enquiry, prior to judging
legitimacy. Events appear, from a practical standpoint, as xed reference
points, which bear on judgments of legitimacy in a mediated way, that is,
insofar as they aect the empirical and normative knowledge requisite for
judgment. In neither view do events impinge directly on judgment itself. But
in lieu of having decisively completed the project of spelling out norms for
any contingency (even aside from whether or not such codication is pos-
sible at all), it would seem desirable to have a conception of practical judging
that opens avenues for improvisation that enable us to practically cope with
disagreement and uncertainty, rather than remain perplexed until we have a
theoretical solution.
In the same swoop in which it insulates judgment from history, this pic-
ture also insulates history from judgment. Because it is indierent about the
time and place of judgment, it also sees no inherent connection between
judgment and action— judgment as such is historically inert. To become po-
litically ecacious, it needs action as a supplement; it is not itself a form of
action, but a mental operation.9 Was Morsi “safeguarding” or “violating” the
9 is suggests a third way in which events might matter on this picture: not just as input for judg-
ment, but to reinforce its output, helping to move from judgment to action by inspiring hope and
condence. See Ypi, “On Revolution in Kant and Marx.”
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“spirit of the revolution?” is dispute can be read in both contextualist and
universalist terms: the revolution may be seen as inaugurating a new era, or
as embodying timeless principles. Either way, the dispute appears as one for
theory to resolve in advance of judgment. What was the original meaning
of the revolution? What were the principles it sought to instantiate? Either
way, the true meaning of the revolution is a fact to be recognized correctly.
Judgment makes no contribution to shaping the meaning of the revolution.
6.3 Judgment in the present progressive
A genuinely dierent view can emerge only when we set aside the norm-
application model. is section begins to develop an alternative by
exhibiting the temporal structure of the notion of judgment presented in
Chapter 3. Recall that judgment was conceived there as a continuous praxis
rather than a singular moment of decision. Particular judgments are seen as
moments in an already ongoing and open- ended practice, rather than dis-
crete deployments of a mental faculty that are severally brought to a close
and then strung together. Since the act of judgment is no longer conceived as
a self- contained episode, the manner in which events impinge on it needs to
be reconsidered also.
Two points are essential here. First, in a parallel move to the two preceding
chapters, we can construe the activity of interpreting and responding to
events as integral rather than prior to judgment— that is, as part of the com-
plex of activities that judging legitimacy consists in. e uptake of events is
now understood as constitutive of judgment rather than preliminary to it.
us, our grasp of “what happened here” and “what our time is like” is not the
ground from which judgment departs, but part of what is at stake in it.
Second, because judging is conceived as an ongoing activity (or, more
precisely, a complex of activities), events can be considered not just in the
present perfect, but also in the progressive aspect: as raising the question
“What is happening here?,” not just “What has happened here?” Since judg-
ment is temporally extended, events in the temporal foreground— which can
now appear as truly current events— intervene in the course of judging, po-
tentially unsettling one’s stance toward the regime. e signicance of the
event in question is not fully determined since the event is still in progress,
and judgment is involved in rendering it more determinate. e contingency
of the present, and its accompanying uncertainty about what is happening
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163
and could happen, now call for a judgmental response. Judgment, in turn,
partakes in the unfolding of events, insofar as that unfolding depends on the
judging subject’s uptake. Meanwhile, events in the temporal background are
retroactively taken up and carried through, reinterpreted and transformed,
forgotten, or reignited in judgment. e past is contingent not just because
the course of history might have been very dierent, but also because the sig-
nicance of that past depends on our own ongoing actions and attributions
of meaning. If, on the standard picture, events lie still in the past— always
prior to judgment— here they live on in and through judging.
us, in stark contrast to the preceding, decision- centered picture, a
practice- centered view of judgment makes it possible to think of judgment
as standing in an ongoing and open- ended practical relation to events—
practical in the twofold sense of comporting oneself towards and partaking
in events. Receptivity to events is not outsourced to activities external to
judging legitimacy but located at its heart. By the same token, partaking in
the course of events is not a further step, beyond judgment: judging is already
acting. is evokes the public character of judging politically: our uptake of
events partakes in their unfolding. (As noted in Chapter 3 with reference to
Arendt, ‘judgment’ that does not make an appearance lacks worldly reality.)
To illustrate, let’s go back to the example, from Chapter 3, of the two of us
strolling through the city center in search of a suitable place to share a meal.
I suggested there that we think about judging restaurants as a temporally
extended activity: judging occurs throughout our stroll (and continues af-
terward), not at intermittent decision points in front of this or that establish-
ment. Now suppose, in the course of our leisurely walk, you feel a few drops
of rain on your cheeks. An event— admittedly, one that is rather mundane—
intervenes in the course of judgment and calls for a response.
On the principle– application model of judgment, whether the weather
makes any dierence to our judging of the next restaurant depends on the
criteria at our disposal. If it’s just about the quality of food, then it would ap-
pear we should take no account of the weather at all. If it is about expected
utility for us, then we rst need to gauge the likelihood and weigh the dis-
comfort of getting wet; now suddenly a nearby place with mediocre- at- best
pub food appears much more tting than it did at rst. If we are caught
by surprise because our criteria do not seem to speak to this situation, we
can only stop in our tracks perplexed, suspend judgment, and reconsider
our criteria before moving on to assess the nearby restaurants. If we were
really to stick with this picture of judgment in the face of disagreement or
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uncertainty— which presumably no sensible real- world actor would do— we
would have to settle on a set of explicit criteria before we can move on. (at,
of course, would surely get us wet.)
By contrast, judgment as praxis takes events in its stride. To gauge whether
the rst drops announce a drizzle or a downpour, you cast your glance at
the sky. Your “uh oh . . . ” draws my attention to the storm clouds above.
With renewed urgency, we scan the vicinity for establishments, implic-
itly taking for granted that neither of us wants to remain outside for much
longer. We both eye the pub on the corner; nding out a little later, when
ordering at the counter, that we did so with conicting plans: you want to go
for the daily dish, while I just order a drink. At least we are dry now, but we
do have a problem: dinner or just drinks for now? We argue for a moment. It
becomes evident that, while you are happy to relax your cuisinal preferences,
I considered the pub merely as temporary shelter. Rather than attempting
to resolve our dispute in favor of either drinks or dinner, we take out our
phones to see how long this weather is going to last. While at it, we might as
well check the map for other places nearby. is might have given us an op-
tion we can both live with, even without settling on a shared set of criteria.
But tonight, we are not so lucky. We nd no easy alternative, we are both
hungry, and it looks like the weather isn’t going to clear up any time soon.
ings come to a head when I persist in refusing to eat pub food, while you
really do not want to get wet. In the end, I decide to brave the storm, since
for me, the whole point of going out in the rst place was to have some fancy
food; leaving you disillusioned, as what you thought mattered most was the
company— “What was I thinking,” you say to yourself, “that I might become
friends with this stubborn snob?”
e crux is this: on our picture of judgment as praxis, all this activity—
looking at the sky, checking our phones, engaging each other in argu-
ment, and so on— is judgmental activity, bearing directly on our choice
of restaurants, and prompted by an unanticipated event. Rather than
suspending judgment until we have settled on suitable criteria, judgment
involves us with the world, events, and one another. ere are criteria in play
here, too, but they do not become fully explicit and may be adjusted as we go
along. ere is, of course, room to engage in deliberation, but doing so does
not li us out of the register of judgment into something other than judging.
Moreover, other forms of judgmental performance could be more fruitful
than trying to justify criteria.
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165
Of course, rainfall is hardly an extra- ordinary event (at certain times, in
certain places). Countless alternative scenarios could be imagined of events
that would intervene and throw judgment o course (an emergency phone
call, coincidental run- in with a third friend, etc.). But this suces to high-
light the key point: judgment responds to events but is also involved in their
unfolding. Of course, the rain falls either way, but its signicance for our
choice of restaurants depends on whether and how we respond to it, and
also on whether and how we have anticipated or prejudged the situation: the
rain would not have interrupted us had we brought an umbrella.10 Instead of
sending us on a quest for theoretical knowledge, this picture draws attention
to the practical signicance of anticipation and improvisation in response to
the unexpected.
One further point to emphasize pertains to the contingency of the tem-
poral background, as opposed to the foreground of current events. Our judg-
mental activity here and now also takes up and reshapes the past. What had
appeared as the beginnings of a friendship, when we rst met, turns out to
have been a dead end. Or imagine, alternatively, that the rain lands us not
in a shady pub but in a particularly intimate setting, one that we would oth-
erwise have avoided as not betting the tone of our relationship. And sup-
pose the setting helps to bring out new and unanticipated feelings toward
one another. Our newfound intimacy retroactively shapes what happened in
our rst encounter, which perhaps, eventually, becomes the subject of lore;
“when we rst met.” As colleagues become friends become lovers— or, as in
our scenario above, become disillusioned with each other— the history of
how we ended up here attains new meaning.
e two senses of contingency distinguished before— the background of a
historical past and the foreground of current events— here also enter the pic-
ture. But rather than informing two distinct forms of knowledge that precede
judgment and enable it, as on the principle– application view, here events
impinge directly on the activity of judging. In the temporal foreground,
we respond to (or ignore) current events; stu that occurs here and now is
rendered thematic or ignored. Furthermore, what happened in our past takes
shape retroactively, and judgment partakes in this shaping by rearming or
altering an event in the background as meaning this- or- that. In neither sense
is the meaning of the event sorted out prior to judgment and then given to
10 It is worth recalling Lindahl’s pithy formulation: “judgment rejudges.” Lindahl, “Representation
Redux,” 486.
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it; rather, part of what judgment consists in is the process of articulating the
meaning of events. Judgment thus conceived responds to and is part of the
course of events. Events are not xtures against the background of which our
judgment takes place. ey live (or cease to) in judging.
We can begin to see how this bears on the question of legitimacy if we look
again at the confrontation of the West German Bundesrepublik and the rad-
ical le in the late 1960s and 1970s. An early and arguably dening moment
in the history of this struggle occurred on June 2, 1967, in West Berlin, when
a student, Benno Ohnesorg, was killed by an undercover policeman in a
clash between demonstrators and the police. e le’s subsequent radicaliza-
tion rendered the event highly politically signicant, though it did so in very
dierent ways from dierent points of view. Indeed, one militant faction,
the 2 June Movement, named itself aer the event. For them, and for others
among the le, the killing of Ohnesorg was a moment of epiphany or aspect
change (or it appeared so in retrospect), at which the regime’s democratic
facade lied and revealed that the ocial beginnings of the Bundesrepublik,
enshrined in the post– Second World War constitution, did not constitute
a true beginning but hid an underlying continuity with the Nazi regime.
Rejecting the legitimacy of the Bundesrepublik then became part and parcel
of opposing the older generation and its responsibility for the Holocaust.11
Historical experience framed current events on the other side of the political
spectrum as well, though in the opposite way. e establishment invoked the
fall of the Weimar Republic as a justication for their heavy- handed reaction
to dissent. ey perceived the radical opposition as an existential threat in
part because of the proven fragility of democracy in the Weimar Republic.12
e constitutional democratic order needed defense mechanisms against
subversion, what was referred to as “militant” or “resilient” democracy. In
this light, the killing of Ohnesorg would appear as just an unfortunate inci-
dent, not a political revelation.13 As the example illustrates, taking a stance
toward the regime is, in part, a matter of comporting oneself toward events,
including events taking place in the temporal foreground, here and now, and
in the historical background.
11 Kundnani, Utopia or Auschwitz.
12 “Memories of the collapse of the Weimar Republic and the rise of Nazism led the founders of the
Federal Republic to believe that if it were to survive, the new democracy had to be aggressively intol-
erant of those who threatened it.” Varon, Bringing the War Home, 255.
13 Pekelder, “From Militancy to Democracy?”
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6.4 Multiple temporalities: Timeframes and registers
I have proposed that we think of judging legitimacy as a temporally extended
and open- ended activity, and argued that this enables us to see judgment as
practically related to events instead of treating events as xtures. But “prac-
tically related” in what ways? What forms of comportment toward events
does judging legitimacy involve? And what does it mean to perform them
well— in other words, what does good judgment consist in? Before we can an-
swer these questions, we need a better grasp of the structure of political time.
Key is the idea that there is no political time in the singular, but multiple
temporalities.14 e present section draws on work in political theory and
the philosophy of history to explicate this idea.
Reinhart Koselleck’s notion of the “contemporaneity of the
noncontemporaneous” (Gleichzeitigkeit der Ungleichzeitigen) is helpful
here.15 Koselleck argues that historical time, as opposed to objective, nat-
ural time, is manifold. ere is not one single dimension of historical past,
present, and future, but “many forms of time superimposed one upon the
o t h e r .” 16 e present is an intersection of asynchronous temporalities;
things being at but not of the same time.17 Just consider the example of “It is
2013”: the monarchy may no longer be “of this time,” as republicans claim,
but it is still around nonetheless. Apparently, the institution lives according
to a time of its own, which does not fully chime with the republicans’ clock.
is multiplicity of temporalities is bound up with the multiplicity of
activities, practices, institutions, and stories, as well as the multiplicity of
perspectives within them, which make up our world.18 Temporalities inter-
sect in particular situations. In some cases, they conict, as might happen,
as Koselleck says, when dierent generations meet in a family or work-
place, “where dierent spaces of experience overlap and perspectives of the
14 is takes up Massimiliano Tomba’s injunction: “Social and political change should be thought
about and practiced in the tension of dierent temporalities and not as the goal of an inevitable his-
torical development along the line of an empty and homogeneous concept of time” Tomba, Insurgent
Universality, 11. Tomba traces this conception of time to Walter Benjamin, Ernst Bloch, and Karl
Marx. See also Hutchings, Time and World Politics.
15 Koselleck, Futures Past, 95.
16 Koselleck, Futures Past, 2; cf. Jordheim, “Multiple Times,” 505– 06.
17 Or, as Achille Mbembe puts it: “is time is not a series but an interlocking of presents, pasts, and
futures that retain their depths of other presents, pasts, and futures, each age bearing, altering, and
maintaining the previous ones.” Mbembe, On the Postcolony, 16.
18 “Historical time . . . , is bound up with social and political actions, with concretely acting and
suering human beings and their institutions and organizations. All these actions have denite,
internalized forms of conduct, each with a peculiar temporal rhythm.” Koselleck, Futures Past, 2.
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future intersect, inclusive of all the conicts with which they are invested.”19
What Koselleck does not note, but has been forcefully argued by postcolo-
nial theorists, is that this friction shows up particularly violently in (post- )
colonial settings. ese thinkers insist on the multiplicity of temporalities in
order to reveal the violence involved in narratives of unilinear moderniza-
tion and the practices inspired and justied by them, which cast Europe as
the spearhead of civilization and non- Europeans as “backward” or “underde-
veloped” and entering “history” only at the moment of their colonization or
enslavement.20
e idea of multiple temporalities is highly evocative, but it can also seem
perplexing. For one thing, it seems one cannot explain temporal multi-
plicity without reference, tacit or explicit, to time in the singular. For when
do temporalities collide? To generate friction, it seems multiple temporalities
must come together in the same moment (Koselleck’s Gleichzeitigkeit). So
it seems we should think about time as a manifold rather than an irreduc-
ible multiplicity. Second, what dierentiates times? At what level of analysis
are they to be distinguished: the level of cultures, traditions, social groups,
individuals?21 Both issues are raised by a famous passage from Johann
Gottfried Herder:
In reality every mutable thing has its own inherent standard [Maß] of
time; . . . no two things in the world have the same standard of time. My
pulse, my step, or the ight of my thoughts is not a temporal standard for
others; the ow of a river, the growth of a tree is not a temporal standard for
all rivers, trees, and plants. . . . [T] here are (one can say it earnestly and cou-
rageously) in the universe at any time innumerable dierent times.22
19 Koselleck, Futures Past, 3.
20 Hanchard, “Afro- Modernity”; Chakrabarty, Provincializing Europe; Mbembe, On the Postcolony.
21 Dierent authors address this in dierent ways. While Koselleck, as we have seen, speaks of
the dierent temporalities of particular actions and practices, Dipesh Chakrabarty dierentiates
more coarsely between “History1” (of capitalist modernization processes) and “History2” (of local
customs) and Charles Mills, drawing on Zerubavel’s notion of “mnemonic communities,” locates
dierences in “racial time” among “human groups in relations of domination and subordina-
tion”: “Societies constructed on an axis (even if one among others) of racial domination will generate
‘racial times’ both at the discursive and the material levels.” Chakrabarty, Provincializing Europe;
Mills, “e Chronopolitics of Racial Time,” 314, 304; Zerubavel, Time Map s. As this last quote
implies, answering this question is itself a timecraing move: the divisions among (social- political)
temporal registers are not simply given.
22 Herder, Verstand Und Erfahrung, 120– 21; following the translation in Jordheim, “Multiple
Times,” 512.
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169
Herder speaks about plural measures or standards of time (Zeitmass,
Zeitmesser), while also referring to an encompassing time of the universe.
We are confronted with a multiplicity of manners of keeping time: tempo-
rally structured activities and practices of counting or measuring. Counting
what? Not, for Herder, a single ‘thing’ that is uniform everywhere, but
rather: rotations around the sun, alternations of day and night, heartbeats,
and so on. For Herder (echoing Aristotle) time is a “measure of changes.”23
In allocating each “mutable thing” its own (measure of) time, Herder
appears to give the most ne- grained answer possible to the question of
what dierentiates temporalities. Note, though, that even if everything has a
timing of its own, that does not as such rule out the possibility of constructing
aggregate- level measures of time for the relations between things as well, and
indeed Herder himself attempted to construct a world history. What Herder
rejects as “delusion (Wahnbi l d )” is the idea of a single, overarching measure,
to which local times all add up or from which they are derived. Rather, tem-
poral measures arise bottom up, from everyday patterns of change and
practices of counting.
What this suggests, I think, is that the idea of multiple temporalities is best
understood not as a claim about the metaphysics of time but about time-
keeping practices, about ways of practically relating events to each other and
carving up time quantitatively and qualitatively. I propose to dierentiate
temporalities along two axes. Regarding any temporal ordering, we can ask
two questions:
a. What timeframe is deployed here? How is temporality structured? How
does one moment appear in relation to another, for example, as be-
fore, aer; beginning, continuing, rupturing, nishing; and so on? By
“timeframes,” I mean ways of ordering and experiencing past, present,
and future. Timeframes relate events to each other in a meaningful way,
for example, identifying this- or- that event as a beginning, end, inter-
mediate step, or interruption of a trajectory (e.g., as revolution or reac-
tion; progress or regress; new direction or continuity). Such frames can
also be structured in dierent ways: as teleological or radically contin-
gent; progressive or regressive; circular, linear, or dis- continuous; fatal-
istic or hopeful; and so on.
23 Herder, Verstand Und Erfahrung, 123.
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b. What register does this timeframe pertain to? To whom or what does
this timing belong? What does it set the rhythm or measure for?
Timeframes are indexed to specic activities, things, lives, practices,
institutions, or forms of life. ere is no distinction between past,
present, and future without something that it is a past, present, and fu-
ture of; this is expressed by the notion of the temporal register.24 For
example, an academic calendar belongs to an academic community; an
electoral cycle to an electoral system; and your heartbeat to your body’s
life process.
To clarify the dierence between timeframe and temporal register, imagine
that you nd a new job, which, contrary to what you are used to, requires you
to work night shis on a regular basis. You have to adjust— reframe— your
daily routine, reset your alarm, adjust your sleeping pattern, possibly switch
around your meals. Maybe now aer your shi, you go straight to bed. Not
only do the beginning and end of your ‘day’ take place at dierent hours than
before, they will look and feel very dierent. e break of dawn will no longer
appear as the moment to wake up but to go to sleep. roughout, the registers
in play remain the same— your everyday routine and your career— while
the timeframes (how your routine is paced and ordered; what opportunities
your professional future holds) shi drastically.
e reason for speaking of timeframes rather than, say, histories
or narratives is that timeframes can be explicit— when we talk about
beginnings, endings, interruptions, and so on— but also embedded in what
people do, as the temporal structure of practices and activities. For example,
you might render some of your daily routine explicit in a narrative (“I usu-
ally get up around noon”) but more pertinently it is something you per-
form daily in a more or less repetitive manner, even if you never weave it
into a story to tell anyone.25 Moreover, even when you do try to render it
explicit, a narrative is no simple reproduction of enacted time, but at best a
24 is is inspired, without claiming delity, by Koselleck’s evocative notion of “layers” of time
(Zeitschichten). Koselleck, Sediments of Time. But the language of layers (or “sediments”) suggests,
a bit too neatly, a stack of independent and self- contained sheets, folded on top of one another, in-
stead of cross- cutting and cross- referencing each other. As Jordheim suggests, “[I] t might be more
useful to imagine dierent temporalities existing in a plane, as parallel lines, paths, tracks, or courses,
zigzagging, sometimes touching or even crossing one another, but all equally visible, tangible, and
with direct consequences for our lives.” Jordheim, “Multiple Times,” 508.
25 Timeframes dier in this respect from Zerubavel’s otherwise similar notion of “time maps,”
which refers to mental representations of time. Zerubavel, Time Maps .
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171
selective reconstruction.26 A frame can also be made to structure activities by
being represented explicitly (like the academic year, election cycles, a career
plan, etc.).
e armation of “multiple temporalities” can now be interpreted as the
denial that there is a master timeframe. Events occur not simply in time but
across time(frames and registers). e multiplicity of timeframes signals that
any event can be interpreted in a variety of dierent and potentially con-
icting ways. An event’s signicance is never exhausted by how it appears
within a particular timeframe. What occurs unremarked in one timeframe
could signal a world historical event in another. When two frames belong
to the same register while characterizing events dierently, the frames con-
ict. Meanwhile, the multiplicity of temporal registers signals that the same
event may have varying signicances in dierent frames, without necessarily
conicting. For the players, the referee’s nal whistle indicates the end of the
game; for the kids watching TV at home, it might signal bedtime.
6.5 Timecra
Turning now to the signicance of temporality in struggles for political le-
gitimacy, we can start by asking: Which are the pertinent registers involved?
We can distinguish schematically four distinct sets of temporal registers that
are salient to the encounter between subject and authority. e rst three will
sound familiar in light of the preceding chapters:
• e time of rule. Here, we nd histories of the regime, from its founding
or emergence, into an anticipated (un)predictable future. We should in-
clude here also the rhythms and transitions of the form and exercise of
power and violence, such as transfers of power through electoral cycles
or inheritance; trajectories of political reform; dierential impositions
of temporal burdens.27
26 Cf. Bourdieu, “e Biographical Illusion”; Strawson, “Against Narrativity.”
27 As Elizabeth Cohen writes: “From the constitutive elements of politics, such as the moment at
which sovereignty commences, to true procedural minutiae, such as the period of time that police
ocers are instructed to wait before giving a statement aer a shooting, time is bound deeply and
inextricably to the exercise of power.” Cohen, e Political Value of Time, 2.
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• e times of subjects. In these registers, we nd the manifold day- to-
day activities, long- term plans, and life stories of individuals as well as
groups.
• e time of judgment. We have already seen in the course of the
preceding that the temporality of judging legitimacy can be framed in
dierent ways (as an ongoing practice vs. an instant of decision making)
and located in dierent registers (the perspective of subjects in a con-
crete encounter vs. the standpoint of any rational subject irrespective of
time or place).
In eect, this simply highlights the temporal dimensions of the forms of
activity discussed in the preceding chapters. e practices of portraying
power and of self- constitution and self- transformation have histories and
are mediated by events. But timecra is not reducible to those forms of ac-
tivity because there is a fourth set of temporal registers involved in judging
legitimacy:
• Temporal surroundings. is refers to the manifold processes and activ-
ities taking place in the background setting in which the encounter be-
tween subject and authority occurs: economic cycles, cultural practices,
natural processes, and so on.
is is obviously a very wide- ranging category: the range of rhythms
that could be taken to bear on one’s relation to the regime in various ways is
practically innite, and these could be framed in many ways. e encounter
between subject and authority might be thought to be embedded in and syn-
chronized with the cosmos, or it could be construed as being swept up in a
progressive world history, or political relationships might be enmeshed in
and overshadowed by economic power and subject to its dynamics. e most
pertinent example is perhaps the natural environment. As natural rhythms of
the earth’s climate and ecosystems interact with and are disrupted by human
cultural and economic activities, part of the diculty in resynchronizing
these clocks is that practices of governance, in turn, have their own temporal
ordering, such that what appears from ecological point of view as the onset
of catastrophic crisis is business as usual in economic and political terms.28
28 Michelle Bastian argues in this regard that “in the current context of multiple ecological crises,
time needs to be more clearly understood, not as a quantitative measurement, but as a powerful so-
cial tool for producing, managing, and/ or undermining various understandings of who or what is in
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Attuning oneself to the natural world also involves rethinking one’s political
relationships, including one’s comportment toward the regime with which
one nds oneself confronted.
e general point here, though, is that politics is not an autonomous do-
main. To be a judging subject confronted by power is to be conditioned
by and to aect a multiplicity of relationships. To relate to the regime in a
particular way is also to relate in concrete but dicult to specify ways to
other elements and beings in that world. One’s comportment vis- à- vis the
authorities can be more or less attuned to these wider relationships and more
or less reective about them. To conceive timecra as constitutive of judging
legitimacy is to construe these forms of attunement as internal rather than
external to one’s practical relation to the regime.
e concept of “timecra” locates judgment precisely at the intersection of
multiple timeframes and temporal registers. By timecra, I mean to refer to
the work that is involved in situating and orientating ourselves within and in
relation to this plurality of temporal frames and registers in a political situa-
tion. e idea has two central features.
ere are many things one can do, moves one can make, in relating practi-
cally to time and events: recollecting or forgetting past events, predicting and
preparing for future ones; beginning, continuing, or cutting short a course
of action; preserving or breaking with a tradition; and so on. is is the rst
key feature of timecra: diverse modes of comportment come into play in
orientating ourselves in time besides explicit discourse, and our actions
can have a multitude of temporal eects. In going to the square to demand
the fall of the regime, one already engages in a multitude of temporalized
performances: clearing out one’s schedule for the day (taking time o work),
disrupting those of others (who nd themselves stuck in even more trac
than usual), trying to bring the time of this regime to a close, enacting a new
form of politics, or recuperating an old one.
e second key point about timecra is that it is essentially poly-
rhythmic: it is a matter of telling stories and responding to and partaking in
events not just on a singular timeline but along multiple temporal registers
at once. Our protester’s performance knits together temporal eects along
various registers: they have cleared out their own schedule, letting work
relation with other things or beings. Seen in this way, the act of ‘telling the time’ gains a political and
ethical dimension that is absent from our usual understandings of time- keeping.” Bastian, “Fatally
Confused,” 25.
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accumulate on their desk or imposing it on their colleagues; they are joining
up with others in collective action, coordinating their simultaneous presence
in the streets; with the aim of trying to end the time of the regime and to
constitute power anew. Timecra is a matter of nding or forcing one’s way
amid, not just multiple timeframes, but multiple temporal registers at play in
a situation.
Our protester congures the relations between these registers in a partic-
ular way, thereby expressing a particular sense of temporal orientation: they
seem committed to the view that their personal involvement has some con-
tribution to make to the fall of the regime, which would appear to imply that
the course of history isn’t xed. If, by contrast, one takes the powers that be
as an irresistible force given by the inevitable course of world history or the
perennial order of things, then the timeframe that would align with that in
the register of one’s personal role could be to mind one’s own daily business
and not involve oneself in matters above one’s station. So thinking about the
relations among multiple temporal registers also means thinking about po-
litical change.29
Recent work in political theory and the philosophy of history that
challenges the unilinear view of political time gives us an initial sense of the
repertoire of timecraing moves. Processes of modernization and practices
of colonization can be understood as imposing a certain temporality, thus
synchronizing (i.e., reframing) the various temporal registers of subjects
(their lives, traditions, customs) and material surroundings (e.g., land to be
cultivated, resources to be appropriated, laboring bodies) to the demands of
capitalist modes of production and imperial rule.30 Developmentalist rhet-
oric notwithstanding, such synchronization need not mean leveling eve-
ryone up to the same time, but could also mean keeping the subjected in a
perennial situation of temporal “backwardness” to sustain relations of subor-
dination. Conversely, the upshot of resistance movements, as well as postco-
lonial theories of history, is oen to disrupt or desynchronize temporalities,
disrupting the lockstep march of European modernity.31 Michael Hanchard
speaks in this regard of “time appropriation”: resisting an imposed
29 e idea of timecra is akin to Wallis’s notion of “chronopolitics,” recently espoused by Charles
Mills. Wallis also highlights this link between “time- perspective” and attitudes toward action and
change. Wallis, “Chronopolitics”; Mills, “e Chronopolitics of Racial Time.”
30 Helge Jordheim notes that “synchronicity is never a given, but always a product of work, of a
complex set of linguistic, conceptual, and technological practices of synchronization.” Jordheim,
“Multiple Times,” 505.
31 Chakrabarty, Provincializing Europe.
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timeframe, not just by proposing an alternate reading of history— because
the new timeframe “is not something one can merely assume exists, and, as
a result, ‘naturally’ ow into”— but by enacting a dierent timeframe in the
register of one’s daily life and political activities, not “to halt the march of his-
tory, but to grasp it, seize it, and transform it for one’s own use, an act which
previously had been denied within the old time.”32 Massimiliano Tomba re-
cently drew attention to the political work of anachronism practiced by cer-
tain revolutionary insurgents: picking up and continuing political projects
deemed surpassed by mainstream European modernity, building bridges
across diachronic time gaps: “recombin[ing] historical times by extracting
from the past futures that have been blocked and which are alternatives to
the present.”33 L as tly, pregurative political movements can be understood as
opening up a new register by enacting here and now forms of political prac-
tice deemed as yet impossible or unfeasible.34
6.6 Timecra’s repertoire
Timecra is the activity of knitting together and unraveling the manifold
threads of time running through our lives, activities, practices, and institutions.
What does this involve concretely, particularly in struggles for legitimacy? Let
us consider some examples.
6.6.1 “It is 2013”
We initially encountered Joanna’s slogan in opposition to the Dutch mon-
archy in Chapter 2: “Down with the monarchy, it is 2013.” Even though it
was exactly 200 years since William I was rst oered the kingship of the
Netherlands, the year 2013 holds little special signicance in the Dutch
context, beyond referring, at the time, to the present.35 Still, Joanna and
32 Hanchard, “Afro- Modernity,” 266.
33 Tomba, Insurgent Universality, 14.
34 Raekstad and Gradin, Pregurative Politics (its subtitle being “Building Tomorrow Today”).
35 e Dutch monarchy is a post– French Revolution institution, founded aer the end of the
Napoleonic occupation that ended the Dutch Republic. In the wake of the French retreat in 1813,
Dutch politicians oered kingship to William, Prince of Orange, whose ancestors had traditionally
held the stadtholdership in the Republic, a prince- like oce which was not, most of the time, ocially
transferred by right of inheritance. William accepted a role as sovereign but held o on the ocial
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her companions found this observation so pertinent that they made it a
hashtag (“#Hetis2013”) for their protest at the inauguration of King Willem-
Alexander. So what move was being made, and what relation to time dis-
played, by anti- monarchists stating the obvious fact that it was 2013?
In the course of a trenchant critique of the common saying that “that is
no longer of this time,” Marin Terpstra has sought to unpack and pick apart
this anti- monarchist slogan, basically dismissing as superstition the idea that
the year tells us anything pertinent to the propriety of the monarchy.36 As
Terpstra sees it, Joanna and her companions wield time as a critical yardstick.
ey invoke history as a transcendent normative order (maatgevende orde)
in which the new is by default better than the old. Joanna poses as a “prophet”
who purports to give univocal expression to time’s linear development by
proclaiming an “unconditional judgment” that the monarchy belongs here
no longer.37 Terpstra sees this reference to time as a poor substitute for gen-
uine thinking and argument because her simple invocation of the year fails
to register that modernity has no singular, unequivocal meaning and that
her reading of history— like any timeframe— is essentially contestable. Time
itself does not settle disputes as to what belongs and what does not belong.
Witness the simple inversion of Joanna’s claim by enthusiasts for the mon-
archy: “It is 2013, long live the monarchy!”
I nd Terpstra’s analysis of time and his critique of unilinear notions of
history highly compelling, but I think a more complex and more charitable
interpretation of what Joanna was doing is possible. Regarding the example
through the lens of timecra reveals two assumptions of Terpstra’s critique.
First, Terpstra’s critique is focused at the level of narratives: the reference
to time invokes an implicit interpretation of “history,” which is taken for
granted and functions, according to Terpstra, as a substitute for a genuine
evaluation of the merits of the monarchy. Indeed, Joanna does, of course,
invoke a certain narrative— a narrative to which her cardboard sign merely
refers, without spelling it out, but which must be presupposed if we are to
make sense of the thought that the year 2013 is relevant for the legitimacy
title of king until 1815. Aer reforms, the role of the monarchy has today become almost entirely
ceremonial.
36 Terpstra, Omstreden moderniteit (“Contested Modernity.” Available, thus far, only in Dutch.)
37 “e slogan of the anti- monarchist demonstrator tries to cut through disagreement about ‘the
monarchy’ with an unconditional judgment and as such resembles a divine judgment. e protester
with her cardboard sign plays at being a prophet with a special line to ‘2013’ or ‘the time.’ ” Terpstra,
Omstreden moderniteit, 42. [Translation TF.]
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of the monarchy. As Joanna explained on television, she sees monarchy as a
“medieval” institution that is “not of this time.”38 Still Terpstra’s critique does
not attend to what else might be going on besides narrating a story. What is it
that Joanna is doing, in referring to the time? What form is her engagement
with time taking here? And second, to what temporal register(s) should we
attribute the timeframe she posits? Terpstra assumes that the reference must
be to a transcendent temporal order. But must that be the case?
Start with the second assumption. Part of what makes it plausible to pre-
sume that the reference to the calendar year refers to a universal history is
the apparent objectivity of chronological time. But notice that it is entirely
familiar to refer to the clock or the calendar as a caesura in a wide range of
activities: the parent telling the child that “it is 8 p.m.; time to go to bed”; the
football coach who is ahead in overtime pointing to their watch in frustra-
tion, signaling to the referee that it’s past due to nish the game. e appeal
to time in these cases does not function as a criterion or a substitute for an ar-
gument yet to be spelled out, but rather as a reminder or exhortation to stick
to the beat of the activity in question. Here, a particular moment in time does
not obtain its signicance from a transcendent normative order, but from
the immanent rhythm of a practice or a daily routine, and the reference to
the clock participates, by rearming that this is the beat, in carrying on that
practice or routine.39
It is possible to read Joanna’s reference to the year in the same way, which
is to suggest that her claim that it is time for the monarchy to go does not
refer to the inexorable tide of universal history but to a far more contingent
rhythm, immanent to a much more specic register. Her performance, aer
all, is an attempt to repoliticize the monarchy, and with it the broader polit-
ical system of which it is a part. To advocate for changing the political system,
or conversely for maintaining the status quo, is to position oneself, more or
less self- consciously, vis- à- vis the past struggles that shaped that political
system and continue to shape it: to arm some of their outcomes and press
on in a particular direction, to try to roll them back, or to reignite what seems
to have been a lost and forgotten cause. Interpreting those past struggles
from a practical point of view is to retroactively identify a certain trajectory
in that past; it is to take those struggles as oriented toward a certain cause,
38 “Pauw & Witteman.”
39 Michelle Bastian has developed an account of chronology as thoroughly conventional, arguing
that we should view references to clock time as performative rather than constative statements.
Bastian, “Fatally Confused.”
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thereby “making a past into a history.”40 Such a red thread need neither be
continuous nor inevitable; what matters is that it is a cause one can identify
with or against, take up and advance further or try to overturn. (is is the
sense in which Jürgen Habermas, with reference to the revolutionary events
of Philadelphia and Paris, invites his readers to imagine themselves as being
“in the same boat” as the founders of a constitutional- democratic project.41
It is also the sense in which e New York Times’ “1619 Project,” recollecting
the arrival of the rst slave ship in what would become the United States,
questioned which boat the founders were in, and what were the relations
among those aboard.42)
From Joanna’s perspective (so I am proposing), the pertinent red thread of
that history is a struggle for democratization— a struggle that is still ongoing,
as yet undecided, and in which Joanna sees herself as partaking; but also a
struggle that has achieved certain results, like the expansions of surage and
formal equality before the law. e monarchy can appear to be out of time,
from this point of view, not simply because it is a “medieval” institution while
“modernity” happens to be the historical setting in which we nd ourselves,
but because it does not cohere with what one takes to be achievements of
the concrete democratic struggles that one wants to arm; what Christopher
Meckstroth calls a “historical baseline” of judgment.43 us, for example,
one might take it that the hereditary principle and the rights and duties of
the monarchy are at odds with political equality, responsibility for one’s own
actions, and freedom to speak one’s mind.
In short, Joanna’s reference to the year may be operating in a dierent reg-
ister than Terpstra presumes— not a universal history, but the contingent and
situated political history of struggles that shaped the regime. is would sug-
gest also that her reference to time is making a dierent kind of move than
Terpstra supposes: not the prophetic pronouncement of the judgment of
universal history, but an attempt to carry through the struggle for democracy
according to a specic, albeit implicit, interpretation of it.
Of course, it is true that merely referencing the year simply presumes this
historical baseline as given and does no work to articulate it. at surely won’t
convince any dedicated monarchist. But perhaps that misses the point. For
40 To borrow Robert Brandom’s characterization of Hegel’s conception of rationality. Brandom,
Tales of the Mighty Dead, 14.
41 Habermas, “Constitutional Democracy,” 775.
42 “e 1619 Project.”
43 Here, history gures “not as a foundation but as a source of context for interpreting the present.”
Meckstroth, e Struggle for Democracy, 27.
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the aforementioned results of past struggles, while not incontestable, are part
of what democracy has come to mean to many people in the present Dutch
context— presumably including many of those celebrating the inauguration
of the king at Dam Square. e Dutch monarchy is depoliticized and typically
regarded as a marginal feature of the political system, a harmless, apolitical
symbol of commonality.44 e royal family’s expenses are more controversial
than its status. It is not a stretch to presume that many celebrators were there
more for the gezelligheid (harmless fun and companionship) than as a delib-
erate expression of political support, let alone an endorsement of the heredi-
tary principle. To them, Joanna would appear not as a political adversary but
as a spoilsport crashing the party.45 In that context, and in regard to such an
audience, invoking the time could draw the audience’s attention to the in-
congruity of the continued existence of the monarchy with the achievements
of past democratic struggles— not by defending an interpretation of those
achievements or engaging its opponents, but by jostling those who are
assumed to tacitly endorse that same interpretation, even though they fail to
bear that out in their actions.
In this light, an apparently simple reference to the time turns out to be
a complex timecraing performance. It is an attempt to synchronize and
desynchronize timeframes along multiple registers at once: the time of the
regime, the everyday lives of the celebrators, and, not least, the activities of
the demonstrators themselves, for they have to somehow nd the time for
political action. It involves synchronizing, because getting rid of the mon-
archy would, on this reading of the time of rule, get rid of a temporal dis-
crepancy within the register of the regime; but also desynchronizing because
her performance interrupts (albeit minimally) the festivities of fellow citi-
zens on their extra day o with an unwelcome reminder of the political sig-
nicance of what they are doing. What appeared as a scheduled break from
the everyday routines of school and work is revealed (from the perspective
of the demonstrator) as an inadvertent drumming to the beat of power, and
pointing that out generates a sense of dissonance that reorients its audience
to the political salience of what is going on here, if it doesn’t just annoy them
and get ignored.
44 See Margry, “Mobocracy and Monarchy.”
45 Indeed, Joanna felt compelled to insist in an interview that the protest did not mean disturb
anyone’s “gezellige” day, thus disavowing the performative upshot I am attributing to her protest.
Interview met activiste Joanna over arrestatie.
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6.6.2 e spirit of the revolution
Merely referring to the time can only go so far. Let us turn to a critical mo-
ment in Egypt: the protests against President Mohamed Morsi on and around
June 30, 2013. As is well known, Morsi was the rst Egyptian president who
was elected through a ballot, the outcome of which could have been other-
wise, aer the fall of Hosni Mubarak. His rule was contested from the begin-
ning, and aer one year, the army took massive protests as the occasion to
remove him from power.
On the surface, the dispute appeared to be about how to interpret the con-
stitution, and what criteria of legitimacy derive from it. According to a group
called Tamarod (Rebellion), the Egyptian people were revoking Morsi’s dem-
ocratic mandate by means of massive protests and a petition demanding
Morsi’s resignation for which they gathered millions of signatures.46 Morsi
himself claimed that a democratic mandate could only be derived from of-
cial elections, and his supporters demonstrated with the slogan “No to vi-
olence and yes to legitimacy.”47 Both sides apparently agreed, then, that the
constitution required a democratic mandate for the president. ey treated
the constitution as their common historical baseline, while disagreeing about
its interpretation.
Yet the conict was not simply about procedures of democratic legitima-
tion. It was also about the signicance of an event. Both sides appealed to the
same event to justify their positions: the “Revolution” of 2011, which had
brought down Mubarak. Critics claimed that Morsi had violated the spirit
of the revolution by appropriating new powers. As Mohammed El- Baradei
tweeted: “Morsi today usurped all state powers and appointed himself
Egypt’s new pharaoh.”48 On this rendering of the course of events, there had
been, aer Morsi’s election, a second regime change: Morsi had ruptured the
time of rule, breaching the continuity between the regime’s founding (in the
2011 Revolution) and the present and recuperating an ancient form of tyr-
anny. Meanwhile, Morsi cast his own “constitutional legitimacy” as the “great
achievement” of that same revolution.49 In his view, strengthening the posi-
tion of the president was essential to preserving and carrying through that
46 “Prole: Egypt’s Tamarod Protest Movement”; Badr, Tamarod: e Organization of a Rebellion.
47 “President Morsi’s Post- Coup Speech”; El- Dabh, “June 30: Tamarod and Its Opponents.”
48 Spencer and Samaan, “Morsi Grants Himself Sweeping New Powers.”
49 “President Morsi’s Post- Coup Speech.”
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181
revolution, which had cut o the head of the preceding regime but le intact
many of its claws and tentacles (particularly in the army and judiciary).
We see, then, clashing timeframes for the register of rule. Both sides an-
chor their timeframe in the same event and seek to make that event into a
beginning, either by maintaining continuity or repairing discontinuity
with the present (within the register of rule). ey did so not only by telling
competing stories (about the continuity and rupture of the regime) but also
by timing their own activities (taking to the streets to reset or sustain the
time of rule) and calling on others to synchronize their actions to the same
timeframe (persuading the president to step down; persuading the army to
abide by the constitution).
However, this overt dispute over the meaning and implications of the rev-
olution occludes a deeper temporal ssure than appears at the surface: for
was there truly a revolution, a beginning that could be restored or carried
through, in the rst place? A sly remark in the documentary e Square hints
in this direction. An army ocer, Major Haytham, alludes to the army’s hand
in the 2011 uprising and the fall of Mubarak: “We didn’t protect the revo-
lution, we made it happen. You kids don’t know anything.”50 e implica-
tion would appear to be that, constitutional changes and replacements of
gureheads notwithstanding, the army was in control all along. What this
suggests is that the existence of the common historical baseline cannot be
taken for granted, but is the work of timecra. For had Morsi managed to
hold onto power, or had the army’s coup been followed by a genuine turn
to electoral democracy, then Mubarak’s fall would have been retroactively
made into a new beginning, irrespective of who actually did what behind
the scenes in 2011. As it happened, though, in view of Egypt’s “slide into the
hands of soldiers,”51 the 2011 events seem more like a return of the same than
a new beginning.
However, to simply say that “nothing changed” in the end would be
to overlook that events play out dierently in dierent registers. For the
spirit of the revolution was not contained within the register of rule, with
its constitutions, heads of state, and governing institutions. Arguably, that
was not even its primary locus. e attempt to rupture the time of rule also
involves, in the manifold registers of participating subjects, a break in their
everyday lives, while the lives of others who keep themselves out of political
50 Noujaim, e S quare.
51 Kirkpatrick, Int o the Hands of the Soldiers.
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aairs go on much the same. e protesters had to adjust their everyday
routines, and perhaps their life plans, to partake in the demonstrations and
street battles. For people like the man with the sign “I used to be afraid, now
I am Egyptian” (whom we met in Chapter 5), joining others in action gave
birth to a new sense of political identity. For many, it brought a tragic end to
their lives.
Yet the Tahrir Square participants did not just frame and reframe ex-
isting registers— they also opened a new one. Distinguishing a multiplicity
of temporal registers (in addition to timeframes) enables us to conceptualize
the intertwinement of continuity and change in revolutionary moments.
It allows us to conceive of radical novelty— a qualitative distinction be-
tween transforming something and beginning something new52— while
recognizing that every rupture (in one register) is also a continuation
(in many others). For many activists, the spirit of the revolution was not
embodied at all in the new constitution and the elections that resulted even-
tually, but rather in the actions, organization, and decision- making practices
that emerged seemingly spontaneously in what they called the “Republic of
Tahrir,” where they pregured (in the midst of bloody confrontations with
the regime’s agents) a dierent form of politics— not so much a reframing of
the register of rule as the opening up of a new register of egalitarian, partici-
patory action.53 To be sure, that opening was eeting, sustained on the square
only for the duration of the protests. Yet solid as the army’s grip seems today,
one cannot exclude that the alternative futures pregured at Tahrir Square
might once be picked up again and carried forward. From a practical point of
view, what happened on the square continues to hang in the balance.54
52 Cf. Wenman, Agonistic Democracy.
53 Mathijs van de Sande compellingly exhibits this pregurative dimension of the protests,
arguing: “Tahrir Square will be remembered as a space of freedom where equality and democracy
was lived; not just as the headquarters of a political movement, but as a sort of social laboratory in
which a new political community began to take shape.” van de Sande, “e Pregurative Politics of
Tahrir Square,” 236. For a similar account with more focus on the spatial dimensions, see Gunning
and Baron, Why Occupy a Square?, 310.
54 “e meaning of what takes place now is shot through with ambiguity, for its signicance can
only be established retrospectively, and only for the time being. . . . What seemed to be at the time the
continuation of order by constituted power becomes, with the benet of hindsight, a veritable foun-
dational moment, but one that escaped its protagonists in that now. On the other hand, what now
seems to be a revolutionary moment, galvanizing participants to great achievements and sacrices,
retrospectively can appear to be no more than a revolution in the sense of a return to the same; the
genuinely revolutionary moment escaped its protagonists when they thought they had it in their
hands.” Lindahl, “Possibility, Actuality, Rupture,” 171.
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6.7 Judging well
I close this chapter by reecting, in an exploratory manner, on this ques-
tion: What constitutes good judgment, in relation to a regime? Again, our
aim is not to adjudicate struggles for legitimacy by identifying which judg-
ment is correct, but to grasp what is involved in judging well in conditions of
uncertainty and disagreement. To say that judging legitimacy consists partly
in timecra implies that the quality of our stance taking toward the regime is
also a matter of the ways in which we experience, interpret, respond to, and
partake in events. What is it for that to go well or poorly?
6.7.1 Responsiveness
I begin by picking up a thread from Terpstra’s critique of Joanna, which
turned on a perceived failure or refusal on her part to acknowledge the
contestability of her sense of the time. Whether or not the criticism applies in
that particular case (I suggested that a dierent reading is at least possible),
the underlying idea is important: judgment is compromised if one acts as if
one’s own reading of history were self- evident and a measure for everyone
else’s, as if time were unilinear and one had privileged access to it. is would
be to manifest a blindness to the questionability of one’s own judging, or, in
Wittgensteinean terms, to be held captive by a picture, unable to see it as a
particular timeframe, for a particular register. Any timeframe is contestable,
and it is problematic to present one’s own reading of history as a self- evident
master timeframe. In the terms of the preceding chapters, this would be a
lack of responsiveness to the conditions of one’s own judging; a failure to ac-
knowledge the inherent questionability of “when” we are and “what is hap-
pening here.”
Terpstra’s recommended mode of acknowledging this contestability, in ef-
fect, suspends judgment:
Let us replace the judgment of time with the consideration (beschouwing)
of the struggle. Only thus— and not by staging oneself in a tragic or heroic
history— can one bring into view the world in which one thinks and acts.55
55 Terpstra, Omstreden moderniteit, 197. [Translation TF.]
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is remark appears to suggest that engaging in timecra is optional. But this
historical staging is not something one does by oneself and could choose to
step back from. Even if you were to abstain from telling your own stories, you
would still nd yourself ensnared in the timeframes imposed by the powers
that be. You inevitably comport yourself toward the regime, and the timecra
it performs, in one manner or another. Judgment is ineluctable. So instead
of acknowledging contestability at an abstract level, I think responsiveness
to the conditions of one’s own judging is manifested in one’s practical com-
portment, in opening up and maintaining rather than closing space for the
questions of when we are and what is happening. And opening such room is
quite literally what Joanna and her companions were doing by politicizing a
festive celebration on Dam Square.
6.7.2 Kairos and virtù
Recall that judgment in the present progressive stands in a twofold practical
relation to time: as both responding to and partaking in events. Here, we en-
counter again a tension between receptivity and spontaneity; between, in this
case, the call to do justice to events as they present themselves— to account
for what is really happening— and the virtuosity of shaping them creatively—
making things happen.
e apparent contradiction can be helpfully staged by casting, following
Melissa Lane, the ancient Greek notion of kairos and the Machiavellian no-
tion of virtù as contrasting ways of conceiving what makes for good judg-
ment in connection to time. e word kairos designates both a concept of
time in general (a qualitative succession of moments of varying meaning
and signicance, in contrast to the purely quantitative, measurable chronos
time56) and a quality of judgment and action: a sense of “good timing.” In
the latter sense, which concerns us here, kairos signies the ability to discern
the “the correct and tting moment for word or deed.”57 is is a matter of
recognizing the objective circumstances in which one nds oneself at this
particular moment, grasping events as they present themselves, appreciating
them for what they are and for the possibilities they aord. Kairos, as Lane
56 Smith, “Time, Times, and the ‘Right Time’: Chronos and Kairos.”
57 Lane, “Political eory and Time,” 238.
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185
presents it, involves rendering a truthful, objectively correct account of the
specicity of this moment within the ow of time.58
Virtù, by contrast, presumes that we cannot know the objectively right
time for action. Any cognitive grasp of particulars is at best partial and fal-
lible. For Machiavelli (again following Lane’s exposition), what sets apart
those who display this excellence, peculiar to eective statesmen, is a cer-
tain mastery of possibility that is not fully explicable. e meaning of events
and the possibilities they aord are not simply given but malleable. e vir-
tuoso does not simply accept circumstances as they present themselves and
respond ttingly but cras the circumstances to t their intended actions or
goals. “If the kairos matched action to moment by claiming to discern an ob-
jective t, virtù was rather the quality of wrenching the moment to favour
one’s action.”59 So conceived, it requires not so much a truthful account of
events as one that is ecacious— being in the grip of a powerful myth could
be more eective than a cognitive grasp of what is actually happening.
us stated, the two appear as contrasting ways of conceiving what makes
for good judgment in relation to time: nding a tting action for a given
timeframe (e.g., whether the time is ripe for revolution) versus molding the
timeframe for a given action (the revolution is made, not found).60 But this
appears contradictory only if we assume that judgment signies a singular
moment of decision in relation to a unilinear time.
I propose to reinterpret kairos and virtù, with the help of the concept of
timecra, as complementary virtues of judgment, without fully resolving the
tension between them. e rst move is simply to situate such a moment
of decision in an ongoing course of action (thus reframing judgment by
extending its temporal register). We can then recognize that virtù relies on
kairos. Aer all, craing the circumstances in which one is to act is itself a
form of acting, and one would presumably have to know— or, if not know,
then somehow glean or guess or appreciate— when the iron is hot and how
58 Mathias aler appropriates the notion of kairos for contemporary political philosophy in a
somewhat dierent manner, contrasting kairos to chronos as distinct but complementary conceptions
of political time. aler, “On Time in Just War eory.”
59 Lane, “Political eory and Time,” 238, 239. e contrast here is stylized because (as Lane has
pointed out in conversation) Machiavelli’s conception of virtù may have been closer to kairos: as
Joanne Paul explains it, virtù requires (also) the skill of discerning the opportune moment for action
(occasione), which, according to Paul, is equivalent to kairos. Even so, Lane maintains that there re-
mains a contrast because for the Greeks an objective order of the good constitutes the reference point
for timeliness, where for Machiavelli the reference point is provided by the goals of the agent. Paul,
“e Use of Kairos in Renaissance Political Philosophy,” 59– 60.
60 For an astute diagnosis of this tension, in a dierent vocabulary, see aler, “Political Judgment
beyond Paralysis and Heroism.”
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far to bend it to one’s advantage before it breaks. Likewise, kairos presupposes
virtù. If we situate the kairotic choice in a longer course of judgmental ac-
tivity, then the circumstances we happen to nd ourselves in and the range
of possible actions we can now take no longer appear as given, but as condi-
tioned partly by our prior choices and actions. In other words, what got us
into this situation in the rst place was, in part, virtù, or the lack of it (and
fortuna, of course).
e next move then is to pluralize the temporal registers at play. Timecra
does not refer to a singular moment of decision in relation to a unilinear time,
but to an ongoing activity, with its own temporal register, which intersects
with and works on a multiplicity of registers in a situation. Timecra deploys
timeframes in order to get a precarious practical and conceptual grip on
the distinct rhythms of these various temporal registers and the synergies
and discordances between them, and these frames take the form both of ex-
plicit justications or narrations or cognitions (like kairos) and of practical
interventions (like virtù). If there is no master frame, and no timeframe is
simply given and held xed such that any other must be made to lockstep
with it, then virtù can appear as the ip side of kairos in a process of mutual
adjustment or attunement of frames in multiple registers.
In other words, we can reinterpret the “t” that kairos and virtù aim at
from their respective angles— the more- than- fortuitous match of moment
and action— as a relation between multiple temporalities, a felicitous syn-
chronicity of timeframes in multiple temporal registers. If kairos means to
time one’s own activities in accord with the beats set by ‘circumstance,’ that
is, with the framings enacted in the wider constellation of other temporal
registers at play in the situation— the time of rule, of other subjects, and of
the world widely construed— then virtù means, conversely, for one’s actions
to ripple and resonate across registers not immediately one’s own, reshaping
the circumstances in which one acts.
My proposal, then, is that manifesting kairos— the ability to recognize
the “right time” for something— involves making sense of the multiplicity
of timeframes and registers operative in a situation, where ‘making sense’
means rendering them explicit, tracing their inferential connections, and
signaling material incompatibilities, as well as timing one’s own activities in
light of that. One’s comportment manifests this virtue insofar as it contributes
to articulating coherent accounts of the possible signicances that an event
may have from various perspectives and in dierent registers. In the case
of the dispute about the Dutch monarchy, for example, this would involve
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187
interpreting the political system and the historical struggles that gave rise to
it, and to comparatively assess alternative readings, explaining whether and
why “down with the monarchy” makes more sense than “long live the mon-
archy” in view of this history, and whether the monarchy should still be seen
as a relevant locus of power at all.61 In contrast to the normativist picture of
judgment as norm application with which we started, all this work of artic-
ulation is here thought of as an ongoing activity that is integral to judging
legitimacy rather than prior to it.
Virtù, meanwhile, involves synchronizing one’s own activities and life
plans with the stories thus synthesized; not merely recognizing the urgency
of action (or lack thereof, as it may be), but planning and acting in accord
with it, and letting those actions play out along multiple registers— for ex-
ample, joining the celebrations, protesting, mobilizing others, or abstaining
from active involvement (depending on the content of those interpretations).
e case of Joanna is ambivalent on this score. On the one hand, thus far,
at least, the monarchy seems not to have budged, and the anti- monarchist
cause has gained little resonance. Yet, having achieved short- lived fame and
airtime on national television (with the help of the police, who arrested her
twice on spurious grounds), she called attention not only to the economic
power of the monarchy but also to other issues of police repression and the
status and treatment of illegal immigrants. So while this timecraing per-
formance did not eect change in the register of rule, perhaps it did resonate
in other registers, and contribute to shaping conditions for wider political
engagement.
A more tragic illustration of an act that reverberates across times is,
once again, the self- immolation of Mohamed Bouazizi. Here, too, multiple
registers intersect: in virtue of how it was taken up by the other protagonists
of the Arab Spring, the end of Bouazizi’s life also became a rupture in the
time of rule, as well as the opening of a new register of political activity.
at Bouazizi chose to die rather than go on drumming the beat of power
indicates that he saw little hope of achieving meaningful change within his
lifetime. Nonetheless, his refusal, carried through as a beginning by so many
others, eected an “interruption of the dominant temporality of the existing
order”62 and generated “now out of never” (to borrow a felicitous phrase63)
61 Cf. Meckstroth, e Struggle for Democracy.
62 Bargu, “Why Did Bouazizi Burn Himself?,” 29.
63 Kuran, “Now out of Never,” aer a po em by Bertolt Brecht (p. 13, note 22).
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by opening up avenues for political activity where none had seemed to exist
before.
6.8 Conclusion
I have argued that normativism, be it of a universalist or contextualist bent,
treats judgment as if out of time and place, and thereby as incapable of prac-
tically responding to events. Receptivity to history is outsourced to empir-
ical description and normative justication, which are rendered prior to
judgment, while the spontaneity of action is cast as posterior to it. e view
I proposed instead regards judging legitimacy as a temporally extended ac-
tivity that involves responding to and partaking in events. Taking a stance
toward the regime is also a matter of comporting oneself vis- à- vis the wider
material- historical setting in which one nds oneself. To esh out what this
involves, I introduced the notion of timecra, with its unruly, polyrhythmic
multiplicity of temporal registers and modes of comportment. Finally,
I oered the beginning of an account of good judgment in relation to the
regime and with regard to time by suggesting that judging well involves com-
bining receptivity and spontaneity in relation to events in the form of kairos
and virtù while manifesting responsiveness to the conditions of one’s own
judging.
If this account makes sense, it yields a further argument that the concrete
encounter of subject and authority matters. Judging legitimacy from a prac-
tical standpoint is a fundamentally dierent activity than taking an observer’s
point of view. Arendt appears to suggest at some point that a determinate, de-
nitive answer to the question “What happened?” is possible, but only from
the third- person standpoint of an external, temporally distant observer:
[T] he light that illuminates processes of action . . . appears only at their end,
frequently when all the participants are dead. Action reveals itself fully only
to the storyteller, that is, to the backward glance of the historian, who in-
deed always knows better what it was all about than the participants.64
Indeed, in the cases we considered, it seems easier to draw the lines of con-
tinuity and rupture in retrospect, from the disengaged standpoint of an
64 Arendt, e Human Condition, 192.
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189
observer. It would be all too easy to say that Germany did make a fresh start
aer the Second World War, and that the revolution failed and Egypt remains
a military dictatorship. Yet the objectivating historian stands in a fundamen-
tally dierent relationship to the situation than a participant. ey have the
benet of hindsight but cannot change what happened. eir past- perfect
take on the situation is possible precisely insofar as it lacks practical involve-
ment with the regime and those subjected. Insofar as their “judgment” has
any practical signicance, it does so in an entirely dierent context. From a
practical standpoint, the signicance of a past event as a revolution is not an
objective deliverance of history, given to judgment, but a work of timecra
that continues to hang in the balance. To think about judgment as timecra
is to conceive judgment in the present progressive, and this means that paths
which appear closed can, in principle, be opened up again. Political time re-
mains inherently unsettled and unruly.
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Facing Authority. Thomas Fossen, Oxford University Press. © Oxford University Press 2024.
DOI: 10.1093/ oso/ 9780197645703.003.0008
Conclusion
Unruly praxis
When your friends call on you to take to the streets and demand the fall of
the regime, and you wonder how to respond, this makes explicit a question
that we all address, albeit oen implicitly, in our everyday lives: How shall
we relate practically to the forms of power with which we nd ourselves
confronted? Grappling with this predicament over half a century ago, Hanna
Pitkin suggested that it is perhaps too much to expect a theory to solve this
question. But if a theory cannot tell someone “what to do in particular cases,”
perhaps it can “tell [them] what sorts of considerations are relevant to [their]
decision, direct [their] attention and tell [them] where to look.” And her pro-
posal for the appropriate place to look was the “nature of the government— its
characteristics, structure, activities, functioning”; in other words, one should
ask what form of regime it is. Pitkin admits this is “not much of a guide,” but
when compared to consent theory, which directs one to look at one’s own
past deeds (“have I (we) consented to this?”), “it is a beginning much more
usefully related to what [people] need to think about when they make such
choices.”1 Following Pitkin’s lead, my ambition in this book has been to de-
velop a philosophical framework for grasping the question of legitimacy as it
presents itself in practice, with the aim of providing orientation rather than
resolution. Part of its upshot has been to vindicate Pitkin’s view that what is at
stake is what power is like (here and now), but it has also broadened our eld
of vision to include relations to one’s surroundings, to others, and, aer all, to
oneself as well.
One way to summarize the picture that has emerged is to say that judging
legitimacy is an unruly praxis. Praxis, because judging is doing something,
comporting oneself practically in several dimensions of political reality,
partaking in practices of contestation. e pertinent forms of activity were
1 Pitkin, “Obligation and Consent— II,” 40. For a discussion of Pitkin’s frequently misunderstood
essay, see Fossen, “e Grammar of Political Obligation.”
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191
parsed, in Part II, along three dimensions. In judging legitimacy, a subject
relates practically to a regime, to themself, and to their historical and mate-
rial surroundings. And in each dimension, judging is something one does
with (and against) others. is is a further way in which this analysis expands
on Pitkin’s: in grasping what the regime is like, more is involved than the
receptivity of perception. ere is also a certain spontaneity to portraying
power: in taking the regime as, say, a police state or a parliamentary de-
mocracy, one partakes, in a consonant or disruptive manner, in the practice
through which the regime is constituted and characterized as what it is. In
the other dimensions, likewise, judgment is co- constitutive of its subject and
its surroundings.
In eect, this analysis implies that it is somewhat misleading to speak of a
single “question of legitimacy.” e question of legitimacy is a shorthand for
a set of irreducible but interrelated questions that arise from a practical point
of view. What forms does power take, in this context? Who am I; who are
we? Where and when are we; and what is happening here? ese issues are
not preliminary but constitute the heart of the predicament: to engage with
these questions is to engage with the question of political legitimacy. Only by
treating these aspects as integral to judging legitimacy, rather than prior to
it, can we do justice to the circumstances of disagreement and uncertainty in
which the question of legitimacy arises, and the concrete dilemmas and risks
to which it exposes us— or so I have proposed in Part II.
e resulting account of political legitimacy can be considered, in a sense,
deationary. We need not postulate, beyond these questions, a further thing,
a ‘property’ of legitimacy to be concerned with. (Or, if such a property exists,
its presence or absence has little to do with the practical predicament subjects
face when confronted by power.) ere are in any situation, from a practical
standpoint, manifold reasons for taking- and- treating a regime as legitimate,
but we do not have to appeal to something that “makes” authorities legiti-
mate; no mysterious “source” of legitimacy needs to be located. In this sense,
struggles for legitimacy are not about legitimacy; rather, they are about who
we are, what the regime is like, what happened and is happening here. e
stance one takes is a resultant of one’s comportments along these dimensions,
which may be expressed with an explicit claim that the regime is legitimate or
illegitimate. e distinction between legitimacy and illegitimacy expresses
the caesura where a disagreement on one or more of these issues becomes a
rupture, and this line is drawn dierently from dierent points of view.
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One might object that surely a struggle for legitimacy is about more than
just how to describe the situation: it is a struggle over rights and duties, the
“right to rule” of the authorities and the duties of subjects (to comply, refrain
from resisting, etc.). It seems, so the objection goes, that the notion of nor-
mative entitlement drops out of the analysis. And this also would be incon-
sistent with the way Chapter 2 conceptualized political legitimacy, namely
as a complex and hybrid normative status: a pattern of commitments and
entitlements attributed across multiple perspectives (subject, authority, and
other subjects). But this objection misses the crucial point. e commitments
and entitlements of authorities and of subjects are always theirs qua the
kinds of authorities (e.g., “state”; “lawful government”; “gang of thugs”) and
subjects (“citizens”; “human beings”; etc.) that they are (and are not). ese
terms, when deployed in practical contexts, are not neutral; they are loaded
with normative baggage, and what that baggage is exactly is assessed dier-
ently in dierent situations and addressed through ongoing contestation.
e rights and duties of citizenship (or statehood) are constitutive of what
it means to be a citizen (or state); and the meaning of these terms cannot be
settled from an independent standpoint but is precisely what is practically at
issue in a struggle for legitimacy. ere is no realm of mere description or of
pure normativity when it comes to the question of legitimacy.
What I mean by calling the praxis of judging a regime fundamentally ‘un-
ruly’ is that a struggle for legitimacy is a situation of normative disorder. In
contrast to pub quizzes, tennis matches, and court battles, as well as, ordi-
narily, policy disputes and election outcomes, no one is in a position to au-
thoritatively settle this question, since “what happens at times of resistance
or revolution is precisely that these normal ocial interpreters are them-
selves called into question.”2 Nor is there a common rulebook that all of the
parties can be taken to acknowledge as authoritative, even in the absence of
a third- party umpire. What might, in other contexts, serve as grounds for
sorting out disputes— an implicit commitment to the rules, to a procedure,
or a third- person umpire— is inherently questionable in a struggle for legit-
imacy. e meaning of citizenship and the political salience of being human
are potentially on the line, in the way that one’s status as a player, let alone
human being, is not while playing tennis or in court (in most cases). It is
precisely when such fundamental issues are called into question that an
2 Pitkin, “Obligation and Consent— II, 51.
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ordinary political dispute becomes an overt struggle over the legitimacy of
the political order.
is does not mean that there is incessant conict and disagreement along
each of these dimensions. Nor does it mean that such disputes cannot de
facto be settled, provisionally, by appealing to or constructing a shared un-
derstanding of the nature of the regime, who we are, when we are. Rather, it
means that insofar as there is common ground, that is not a given but a con-
sequence of converging judgment, which always remains provisional. From
a practical point of view, there is inherently a tension between something’s
being legitimate and it merely being taken as legitimate, and this is true both
vis- à- vis what is ‘generally accepted’ by the community, and vis- à- vis one’s
own subjectively acknowledged commitments (as observed in Chapter 2).
is cashes out, more concretely, as a tension between how the authorities
portray themselves (or how others portray them) and how they are properly
portrayed; who you truly are, and who you are taken to be (by the regime,
others, yourself); what is happening and what one takes to be happening.
ere is no privileged point of view from which these tensions can be re-
solved. To be clear, unruliness consists not in the absence of criteria. ere
are in a concrete situation many reasons for portraying the regime as, say, a
parliamentary democracy rather than a police state, or the other way around,
or for saying that neither of these alternatives is apt. It is just that what counts
as a good reason here is not simply given but itself part of what is at issue. e
pertinent criteria are themselves at stake in the very dispute they are meant
to address.
e sense of unruliness I have in mind here is deeply political, and goes
beyond the inherent contestability and provisionality that aict any mean-
ingful claim, according to Brandom’s pragmatism (discussed in Chapter 2).
If you recall, Brandom describes the practice of evaluating the truth of fac-
tual claims as a “messy retail business of assessing the comparative authority
of competing evidential and inferential claims.”3 But this “messy retail busi-
ness” is already too tidy, too ‘ruly,’ to describe the predicament we have been
concerned with here. Note, rst of all, that the claims at issue for us are not
just factual (although they certainly have factual aspects) but also profoundly
practical, existential even: the very being of what is being talked about (selves,
authorities, and events) is sustained (or subverted) through the scorekeeping
practice itself, and is therefore fragile in a way that many ordinary facts
3 Brandom, Making It Explicit, 601.
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are not. Moreover, the free- market claims economy of Brandom’s deontic
scorekeeping model is built on the assumption that all parties are symmet-
rically authoritative scorekeepers, each entitled to maintain their own sets of
books tracking who should buy which claims at what inferential price, con-
tinuously comparing their own perspective to that of others. e reciprocal
roles of buyer and seller appear as simply given, and the normative order re-
quired for their exchanges to operate smoothly, assuring that disputes are
settled by “giving and asking for reasons,” is presupposed but does not come
into view.4 In contrast, at issue here are not just the credentials of rst- order
claims and criteria by which to assess them, but also and at the same time
the status of the claims makers and the very existence of the objects the
claims are about: collective selood and political authority. Here, nothing
guarantees that the parties recognize one another as interlocutors, refrain
from imposing their claims on others, or have more or less equal resources at
their disposal. On the contrary, taking a stance oen involves staging, mobi-
lization, and strife by other means than exchanging arguments, in conditions
of sometimes radical inequality, as witnessed dramatically by the weapon-
ization of the body to which Mohamed Bouazizi had to resort to be heard
as making a legitimacy claim at all.5 is has been the refrain of Part II: the
political world is not simply given to judgment but at stake in it; the space
of reasons is politically constructed; and the game of giving and asking for
reasons is also a struggle to be seen and heard in the rst place.
is unruliness explains why the question of legitimacy can only be en-
gaged from a practical standpoint, and resists the theoretical resolution
normativist theorists typically seek to provide. Simply pronouncing from
an observer’s standpoint that this or that regime is “’legitimate” or “illegit-
imate,” whether in mente or out loud, does not amount to “judgment” in
the full sense at issue here. Expressing one’s opinion in this manner simply
doesn’t involve the kind of commitment that is involved in existential strife.
As a consequence, it matters profoundly whether the regime you are judging
is one you actually nd yourself confronted with.
Does that mean it makes no sense at all to speak of the “legitimacy” of a
regime from an external point of view? Of course, you can say of any regime,
whether actual, historical, or imaginary, that it is legitimate or illegitimate.
4 is characterization is fair when it comes to Brandom’s exposition of the deontic scorekeeping
account of meaning in Making It Explicit, but the later Brandom has a much more elaborate Hegelian
story to tell about the emergence of order and the constitution of scorekeeping selves.
5 Bargu, “Why Did Bouazizi Burn Himself?”
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195
But what does it mean to say this, and what does one do in saying it? I have
proposed that claiming that a regime is legitimate from a practical point of
view is expressing one’s political stance toward the regime, which is at the
same time to partake in practices of portraying power, self- transformation,
and timecra. Speaking of the legitimacy of an imaginary or historical re-
gime just cannot have the same practical signicance. Still, that is not to deny
that when “judging” from afar, you are doing something. You might engage a
distant regime as a third party, for example through diplomatic or economic
relations. Even if the case is purely hypothetical, you might still clarify or dis-
play your beliefs by considering what stance it would be appropriate to take,
in your view (like a spectator on the couch blowing a whistle while watching
a game, playing at being referee). In any case, though, these distant observers
are in a structurally dierent type of position vis- à- vis the authorities in
question, and hence engaging in a qualitatively dierent form of practice.
And since you are doing something quite dierent in deploying the term “le-
gitimacy” here, you are, in eect, deploying a dierent concept.
at philosophical theories oen remain oblivious to the dierences
of meaning and perspective involved here may perhaps be attributed to a
phenomenon Mark Wilson calls “wandering signicance.”6 Words change
meaning in subtle and oen unnoticed ways when used from one situation
to the next, and this is so especially when the shi is from one type of set-
ting to another— not least, the shi from a political to a scholarly context.
A practical concept becomes an analytical tool when deployed from a third-
personal point of view. Witness Weber’s postulation (discussed in Chapter 1)
that “legitimacy” is to be treated, from a sociological standpoint, as “the prob-
ability that to a relevant degree the appropriate attitudes will exist, and the
corresponding practical conduct ensue.”7 It was quickly forgotten (though
not by Weber) that this technical regimentation of language was intended
for specic descriptive and explanatory purposes, recurrent reminders from
reective social scientists and philosophers notwithstanding. e postulated
meaning became standard use for many trained in the social sciences, no
longer carefully distinguished from what the word ordinarily meant, even-
tually spilling back into everyday public discourse. In philosophy, mean-
while, signicance wandered in the opposite direction, reifying rather than
forgetting the practical signicance of the term. As, with the emergence of the
6 Wilson, Wandering Signicance.
7 Weber, Economy and Society, 1:214.
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social sciences, philosophy became an academic discipline with increasingly
narrow remit, it posited, as a counterpoint to the sociological standpoint, a
“normative standpoint”— a singular point of view, seemingly out of time and
place. Here, “legitimacy” becomes an abstract moral property, its necessary
and sucient conditions identiable purely by moral argument, regardless
of an index to specic struggles, situations, subjects, power constellations,
and events. Only by taking this standpoint for granted can we assure our-
selves that, as Arthur Applbaum recently put it, “[W] e always have a place to
stand from which to make these judgments about legitimacy.”8
e assumption behind this is that morality provides ruliness, that we al-
ways already share a moral standpoint (even if not the same moral views),
so that it is just a matter of justifying the right standards to adjudicate which
stance is “correct.” But morality is itself deeply contested territory, both as
to its nature and its content, and these issues are profoundly bound up with
who we take ourselves to be. e political salience of being human, a rational
agent, a rights- bearer, a utility- maximizer, a social animal, and so on is itself
at stake in the question of legitimacy, not solid ground for its resolution. at
observation, of course, does not entail that there exists no objectively correct
answer. It does mean that the question of legitimacy cuts so deep into the
fabric of political reality that any attempt to adjudicate the dispute is, in fact,
engaging in it— and a theory of legitimacy needs to be reexive on this score.
is book has sought to recalibrate our concepts, not in an attempt to recover
a pure original meaning, but in order to reorient our theorizing toward polit-
ical practice and to oer a more reexive account of how our concepts relate
to that practice.
From criteria of legitimacy to conditions
of good judgment
But if judgment is unruly, that does not make it arbitrary or merely subjec-
tive. Nor does it entail that political theorizing cannot meaningfully con-
tribute. e view developed in this book opens three avenues for thinking
further about how theorizing can contribute to helping judgment go well.
First, of course, it is always possible to engage critically in the practices I have
tried to explicate: to scrutinize constellations of power, self- understandings,
8 Applbaum, Legitimacy, 247.
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197
and events in concrete situations. And this is what many political theorists
already do (and have historically done). I am not thinking primarily of those
who explicitly occupy themselves with developing theories of political le-
gitimacy, but of those whose theoretical work aims to get a conceptual grip
on the workings of power, the constitution and characterization of selood,
and the meaning of events in concrete settings. A good example is the work
of Achille Mbembe on the forms of power and subjectivity in postcolonial
Africa. Mbembe examines both the farcical nature of regimes and the ways
in which people can cope with the farcical nature of their regimes.9 Michel
Foucault is another prominent example, despite his thorough lack of interest
in the question “What legitimates power?” He sees the question of legitimacy
as a form of political thinking “based on legal models”— not something he
regards as a compliment.10 is characterization is apt as far as normativism
goes. But it would be a mistake to dismiss the problem because one does not
agree with the predominant framing of it. Indeed, also for Foucault, there
remains a practical predicament of how to relate to the forms of power with
which one nds oneself confronted. Much of his work attempts to render
visible historically contingent relations of power and their role in shaping
forms of subjectivity. So grasping the problem in the way I am proposing
casts Foucault, like Mbembe, as a theorist of legitimacy par excellence, his
animadversions to the contrary notwithstanding.
What Foucault was not prone to do was to engage in these activities by
articulating principles or criteria, but that, too, can be part of the story.
Without necessarily regarding a theory as in essence a codication project,
and without reducing judgment to the application of such principles, one
can partake in the game of giving and asking for reasons in these various
dimensions. us, one might try to systematically spell out and critically
assess what one commits oneself to in calling something “democratic” or
“undemocratic,” and whether for example, abolishing the monarchy would
enhance a regime’s democratic credentials or not. Christopher Meckstroth’s
approach to democratic judgment enables us to do just that.11 Rather than
proposing a set of criteria for what makes a regime democratic, Meckstroth
develops a nonfoundationalist method for comparatively assessing
proposals for democratic reform. Judging here consists not in the application
9 Mbembe, On the Postcolony.
10 Foucault, “e Subject and Power,” 778.
11 Meckstroth, e Struggle for Democracy.
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of principles but in drawing out in detail and comparatively evaluating the
inferential implications of competing positions in a particular political
struggle.
e second direction for philosophical enquiry to which the account
oered here orients us is simply to push much further the lines of enquiry
undertaken in an exploratory fashion in Part II, which is to say: to articu-
late and examine the forms of activity that constitute judgment, and explicate
what makes for good judgment. is calls for much more ne- grained anal-
ysis and argumentation than I have been able to provide here. Perhaps the
range of activities constitutive of judgment could be expanded, for example,
by considering place making as a distinct dimension of judgment; and per-
haps dierent qualities of good judgment can be identied than those I have
sketched.
From this perspective— and this will be my nal point— what makes
judging legitimacy such a challenge is not so much our lack of a certain form
of philosophical knowledge, but rather the stubborn character of political re-
ality and the precariousness of our grip on that reality. is raises the funda-
mental question, which I have barely touched on here, of the conditions of
judgment: What circumstances and conditions enable or subvert our ability
to judge well? It is hard to overstate the diculty of getting a grasp of relations
of power one nds oneself in. “When you have no rights, when you’re taken
for granted, when you’re lied to, when you’re killed, things become pretty
clear,” says Khalid Abdalla, one of the activists portrayed in e Square.12 But
subjective experience is one thing, attributing responsibility and manifesting
one’s judgment in the world is something else. And if judging legitimacy is
something one does with others, then the diculty, poignantly documented
in the lm, is also to share that sense of clarity with and communicate one’s
sense of what is going on to others with dierent points of view, interests,
and attention spans. Another Tahrir Square activist, Magdy Ashour, testies
to this diculty when he remarks: “ere is a fog in the country.” He is not,
I think, referring to the teargas in the streets, but to the smokescreens that
are pulled up around people’s experiences and intentions. Distrust, division,
and disinformation prevent the same things and events from coming into
view from multiple perspectives, and those perspectives from meeting—
especially where a regime’s survival is at issue. But also where a regime is
generally accepted and appears to run smoothly, there may be little room
12 Noujaim, e S quare.
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199
for questions to be asked, evidence to be considered, inferences to be spelled
out and critically assessed, contestations to be staged. e “space of appear-
ance” (as Hannah Arendt called it), where people appear to each other as
having distinct perspectives, as capable of words and deeds, and mutually
calling for response, is precarious. Judgment is ineluctable; one inevitably
relates to the powers that be in one way or another. But the quality of judging
may be highly compromised. e uncanny implication is that there may be
conditions, possibly very widespread ones, in which it is not even possible to
judge well. at would mean that the workings of power remain opaque and
elusive, our selves fragmented and fractured, and our political relationships
out of tune with the wider world around us. And if judging is indeed an un-
ruly activity, then this is a predicament one cannot simply contemplate one-
self out of.
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no. 4 (2002): 540– 53. https:// doi.org/ 10.1111/ 1467- 8675.00302.
Zerilli, Linda M. G. A Democratic eory of Judgment. Chicago: University of Chicago
Press, 2016.
Zerilli, Linda M. G. “e Turn to Aect and the Problem of Judgment.” New Literary
History 46 (2015): 261– 86.
Zerubavel, Eviatar. Time Maps: Collective Memory and the Social Shape of the Past.
Chicago: Universsity of Chicago Press, 2003.
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Index
For the benet of digital users, indexed terms that span two pages (e.g., 52– 53) may, on
occasion, appear on only one of those pages.
1619 Project, 177– 78
2 June Movement, 166
Abdalla, Khalid, 198– 99
action, 7, 23, 47, 49– 50, 52, 137
in Arendt, 81– 82
Africa, 43, 95n.1, 115, 196– 97
agonism, 124, 127– 28, 136– 38, 144– 45,
151– 52, 152n.42
Althusser, Louis, 108n.18, 125– 26n.6, 142
Amsterdam (the Netherlands), 46. See also
Joanna example
anarchism (philosophical), 128, 130– 31,
133– 34, 143, 158
application. See judgment as norm
application, justication as separate
from application
April 6 Youth Movement, 43– 44
Arab Spring, 43– 45, 59– 60, 104– 5, 108– 9,
117– 18, 123, 143, 156, 187– 89. See
also Egyptianhood; Tahrir Square;
spirit of the revolution
Arendt, Hannah, 5, 36, 70– 71, 81, 82, 137–
38, 138– 39n.31, 159, 188, 198– 99
Ashour, Magdy, 198– 99
associativism, 124, 127, 131– 35,
144, 150
attunement, 8– 9, 69, 73– 78, 80, 88, 90– 91,
173, 186
authoritarianism, 43– 44, 45, 158
authority, 1, 47– 52, 193– 94
as represented power 50– 51, 107
Bargu, Banu, 150– 51
Basic Legitimation Demand, 27– 28
beauty, 4– 5, 70– 71, 72, 126– 27
Beetham, David, 17– 18, 29
Bekheit, General Hamdy, 117– 18
beliefs, 55, 56– 57, 65n.39, 75, 85– 86,
119, 194– 95
of legitimacy, 13– 14, 15– 18, 27– 30, 39,
40, 41 (see also opinion)
Berlin (Germany), 166. See also
Bundesrepublik example
Between Facts and Norms
(Habermas), 27– 28
Bouazizi, Mohamed, 43– 44, 150– 51, 156,
187– 88, 193– 94
Brandom, Robert, 8, 41– 42, 52– 56,
57n.32, 58n.35, 62– 65nn.37– 39,
66– 67, 82n.23, 84– 86, 89n.40,
146n.35, 193– 94
Bundesrepublik example, 45– 46, 47, 60,
97– 98, 104, 105, 156, 166, 188– 89
Cairo (Egypt), 43. See also Arab Spring
capitalism 47, 168n.21, 174– 75
character, as aspect of identity, 9– 10, 125
chess, 47– 48, 65– 66, 75– 76, 110
Churchill (portrait of), 103– 4
citizen(ship), 30– 31, 47, 133, 147– 48,
150, 192
as free and equal, 31, 33, 35
standpoint of, 32– 33
civil disobedience (Rawls), 33n.60
climate change, 172– 73
codication. See normativism
community, 62, 65, 123– 24, 131– 35, 143–
44, 146– 47, 193
comportment, 51– 52, 102, 106, 113, 117–
18, 119, 184, 190– 91
judgment as, 2– 3, 145, 148– 49, 152– 53
toward events, 157, 163, 166, 167, 173,
186– 87, 188
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toward a regime, 1, 48– 49, 127– 28,
140, 172– 73
congruence, 18, 28– 29
consent, 2, 19n.21, 20, 21, 100, 134n.22,
158, 190
consistency, 9– 10, 50– 51, 124, 128, 143,
145– 48, 151– 52
constitution (legal), 32, 108– 9,
111– 12, 166, 180– 82. See also
democracy: constitutional
constitution (ontological)
of authority / the regime 3, 101
of collective self 3, 9– 10, 132– 33, 143–
44, 150, 154, 198
constructivism (about representation)
103, 105– 6, 117
contestability, 55, 66– 67, 88, 104, 136,
137– 38, 176, 183, 193– 94
contestation, 3, 18, 43– 47, 48– 49, 89– 90,
156– 57, 190– 91, 192
context, 5, 41, 48, 50– 51, 65– 66, 76– 77, 78,
90, 112– 13
practical vs. theoretical, 16– 18,
24, 63– 66
Rawls and Habermas, 6, 33– 34
contextualism, 24, 27– 28, 33– 34, 156– 62
conventionalism, 62, 152– 53
correctness. See validity
criteria. See norms
Czechoslovakia, 115
Dam Square (Amsterdam), 46, 110,
156, 178– 79, 184. See also Joanna
example
decision (mental)
vs. judgment, 8– 9, 23, 29, 69, 73, 75– 83,
163, 172, 185, 186
democracy, 6, 7– 8, 20, 45– 46, 47, 177– 78
constitutional, 14, 30– 34, 102, 166
deontic scorekeeping, 41– 42, 52– 56, 57,
62– 63, 65, 66– 67, 84– 85, 193– 94
deontic status. See normative status
descriptive. See normative vs. descriptive
Egyptianhood, 123, 128, 132– 33, 136–
38, 148, 149– 50, 153– 54. See also
Arab Spring
El- Baradei, Mohamed, 104, 111– 12,
120, 180– 81
election, 43– 44, 47– 48, 49– 50, 79, 96– 99,
101, 105, 107– 9, 111– 12, 120, 170,
180, 181
encounter
aesthetic, 4– 5, 71, 87– 88, 126– 28
between subject and authority, 10, 23–
24, 38, 42, 48– 49, 51, 63, 64, 102, 107,
112– 13, 121– 22, 126– 28, 138, 139–
40, 142, 143– 44, 155, 171– 73, 188
Essam, Ramy, 119
Estlund, David, 25n.36, 114– 16
European Union (EU), 99, 102
event, 2– 3, 10, 35– 36, 155–189 passim
evidence, 77n.18, 117– 19
expressive
function of legitimacy claims,
42, 56– 60
vs. adjudicative theory of legitimacy, 6,
14, 30– 34
external point of view. See observer’s
standpoint
fear, 123, 137– 38, 148, 149, 150–
51, 153– 54
rst- person perspective. See practical
point of view
Foucault, Michel, 49– 50, 49n.20, 125–
26n.6, 136– 37, 197– 98
foundationalism, 124, 127, 128– 31, 139,
140, 144, 147
Germany, 45– 46, 60, 97– 98, 156, 188– 89.
See also Bundesrepublik example
Geuss, Raymond, 29– 30
given
facts and norms as, 23, 29, 71– 72, 87
good reasons as, 193
history as, 35, 160– 61, 168n.21, 188– 89
identity as, 131, 133– 35, 152– 53
morality as, 18– 25, 33, 41
myth of the, 23, 72– 73, 87– 88, 113–
16, 155
power as, 89– 90, 112
Sellars on the, 88
status of scorekeepers, 193– 94
See also knowledge as given
comportment (cont.)
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217
Habermas, Jürgen, 6, 7– 8, 14, 27– 28, 30–
38, 84, 177– 78
Hanchard, Michael, 174– 75
Havel, Václav, 115– 16, 119
Haytham, Major, 111– 12, 181
Herder, Johann Gottfried, 168– 69
historical baseline, 178– 79, 180, 181
Hobbes, omas, 6, 107n.17, 150– 51
Holocaust, 156, 166
Horton, John, 26n.39, 28– 29, 34n.61, 133–
34, 133n.15
identity, 2– 3, 9– 10, 37– 38, 47, 49– 50,
123–154 passim
inferential signicance of, 128, 139,
144, 145– 48
ontological signicance of, 131– 32, 139,
144, 148– 51
personal, 125, 143, 147
questionability of, 138, 139, 144, 151– 54
Rawls and, 35– 36
inauguration. See Joanna example
inferentialism, 54, 85– 86, 118– 19, 144
integrity, 9– 10, 124, 145, 148– 51
as anticipatory, 150
“I used to be afraid, now I am Egyptian,”
123, 148, 153– 54
Joanna example, 46– 47, 59– 60, 104, 110,
120, 156, 175– 79, 183– 84, 187
judgment
aesthetic, 4– 5, 126– 28
as attunement, 69, 73– 78 (see also
attunement)
as (co- )constitutive of authority, 6, 9,
89– 90, 95–102 passim, 190– 91
determining, 70– 71, 126– 27
and events, 157– 66
good, 3, 9– 10, 24, 72, 78, 80, 90, 113– 21,
124, 144– 54, 183– 88, 196– 99
and identity, 141– 44
in Kant, 70– 71, 126– 28
legal 22, 81, 82
as norm application, 2, 8– 9, 18– 30, 69,
87– 88, 99– 101, 130, 157– 62, 186– 87
political, 5, 69– 70, 80n.20
political realism and, 29– 30
practical vs. theoretical, 96, 99
as practice, 2– 3, 8– 9, 69, 74, 78–
83, 190– 96
in Rawls and Habermas, 30– 31
reective, 8– 9, 23, 69– 73, 87–
88, 126– 28
See also temporality of, Kant on
justice, 23– 24, 45, 150– 51
as fairness, 31
justication, 2, 7– 8, 23, 90, 128, 130–
31, 159– 60
Beetham vs. Weber on, 18
Brandom on, 85– 86
as separate from application, 23– 24,
71– 72, 87, 139
kairos, 10, 184– 88
Kant, Immanuel, 5, 22, 24, 70– 71, 85n.30,
107, 126– 28
Kefaya movement, 43– 44
Khalil, Ashraf, 148
knowledge
Brandom on, 55– 56, 58n.35, 65,
89n.40
as given to judgment, 21, 23, 24, 29,
100– 1, 132
of norms of legitimacy, 2, 20– 21, 26– 27,
29, 37– 38, 40– 41, 198– 99 (see also
normativism)
Sellars on, 84n.27, 88
Koselleck, Reinhart, 167– 68
Kubrick, Stanley, 4– 5
Laden, Anthony, 32– 33, 36n.66, 76n.16,
84, 86n.35, 88
Lane, Melissa, 156n.2, 184– 85
law, 1, 30– 34, 44– 45
legitimacy, 1, 3– 7, 8, 39–67 passim, 191
claim, 52– 53
as a complex hybrid deontic
status, 56– 60
deationary notion of, 66– 67, 191
de jure vs. de facto, 8, 13, 16– 17, 41, 42–
43, 60– 63, 66
democratic, 6, 129, 197
democratic principle of, 6, 32
history of the term, 15n.4
liberal principle of, 6, 32, 35– 37
political, 31, 47– 48
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Leviathan (Hobbes), 6
liberalism, 27– 28, 129– 31. See also
Rawls, John
Machiavelli, Niccolò, 184– 85
Mahfouz, Asmaa, 123, 147– 48
making sense, 28, 186– 87
Geuss on, 29– 30
Williams on, 27– 28, 160n.8
Martin, Wayne, 73– 74, 77n.18, 83n.26,
118n.39
Mbembe, Achille, 95n.1, 115– 16, 120– 21,
167n.17, 196– 97
meaning, 5, 43, 52– 56, 81
Meckstroth, Christopher, 31n.53,
178, 197– 98
membership (political), 131– 35, 140
metaphysical approach 39, 48
method, 2, 3– 7, 190– 96
Middle East, 43. See also Arab Spring
mo narc hy. See Joanna example
moralism, 7– 8, 13– 14, 18– 25. See also
normativism
morality, 7, 18– 26, 41, 196. See also given:
morality as
Morsi, Mohamed, 104, 108– 9, 111– 12,
117– 18, 120, 156, 161– 62, 180– 82
Mubarak, Hosni, 43– 44, 48, 108– 9,
111– 12, 117– 18, 123, 136– 37, 148,
156, 180– 81
multiple temporalities, 167– 71
Muslim Brotherhood, 111– 12
Napoleon (Kubrick), 4– 5
National Democratic Party (NDP,
Egypt), 43– 44
nationality, 123, 136– 37, 143
natural duty (Rawls), 33n.60
nature, 172– 73
Nazi regime 166
Netherlands, the, 46, 175– 76. See also
Joanna example
Newey, Glen, 26– 27
New York Times, e, 177– 78
norms, role in judgment of, 3, 70– 71, 74–
75, 87– 88, 100, 191, 193
normative status, 53– 54, 56, 84– 86. See
also deontic scorekeeping
citizenship as a, 49– 50, 133– 34, 140
legitimacy as a, 8, 13, 16, 17– 19, 41, 42–
43, 56– 60, 63, 99– 100, 192
normative vs. descriptive, 6– 7, 8, 13, 98–
101, 192
normativism, 2, 3– 8, 9, 14– 15, 18– 30, 40–
41, 113– 16, 155
as conception of judgment (see
judgment as norm application)
as quest for knowledge, 20– 21,
37– 38, 129, 136, 140, 163– 64,
165, 198– 99
as task description for political theory,
2, 13– 14, 19– 21, 194
See also given
Noujaim, Jehane, 117– 18
novelty, 71– 72, 159, 160– 61
Nozick, Robert, 19– 21, 130– 31
obedience, 16– 17, 42, 51, 52. See also
recognition
observer’s standpoint, 32– 33, 43, 112– 13,
188– 89, 194– 95
asymmetry with participant standpoint,
56– 57, 63– 66, 194– 95
in Weber, 16, 41, 195– 96
See also participant perspective;
practical point of view
Ohnesorg, Benno, 166
O’Neill, Onora, 23, 100n.8, 158
opinion
vs. political stance / judgment, 43, 51–
52, 64– 65, 81, 126– 28, 149, 194
parenthood, 135, 146– 48, 177
participant perspective
in Rawls and Habermas, 32– 33
in Weber, 16– 18
See also practical point of view
path dependency (of judgment), 76– 77
people, the, 59– 60, 108– 9, 143
perspective, 5, 6, 8, 24, 42– 43, 50n.22,
54– 56, 57, 66– 67, 86, 146, 151– 52,
167– 68, 195– 96
legitimacy as (in)dependent of, 40– 41,
61, 98– 99
and space of appearance, 81– 83
See also participant perspective
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219
Pitkin, Hanna, 97n.4, 103– 4,
110n.25, 190– 91
Political Liberalism (Rawls), 27– 28
political obligation, 16, 21, 33n.60, 58n.34,
59, 129– 30, 132n.14, 133n.15, 135,
142, 190n.1, 192
political ontology, 7, 89– 90, 101, 106, 107,
116, 131– 32, 139, 144
political order, 1, 4, 28– 29, 33, 45– 47, 48–
49, 109– 10, 115, 192– 93
political philosophy, task of, 6, 21, 33, 37–
38, 190, 195– 99. See also method
political reality, 3, 7– 9, 69, 78, 82, 89– 91,
96, 98– 99, 107– 8, 113, 117, 155, 190–
91, 193– 94, 196, 198– 99
political time. See temporality
politics, 48– 49, 157
as stance taking toward rule, 8,
42, 47– 52
portrayal. See representation
postcolonialism, 167– 68, 168n.21, See also
Mbembe, Achille
power, 1, 9, 44– 45
dened, 47– 52, 106– 13
how to theorize, 114– 16, 196– 97
and identity, 136– 37
in Rawls, 31, 35
practical point of view, 2, 8, 16– 18, 29,
42– 43, 61, 66, 101, 112– 13, 121– 22,
124– 25, 126– 27, 133– 35, 140, 188–
89, 191, 194
asymmetry with observer, 56– 57, 63–
66, 194– 95
See also participant perspective
practice dependence, 116n.36
pragmatic signicance, 43, 53– 54
pragmatism
about rationality, 84– 86
approach to legitimacy, 14, 34– 38,
39–67 passim
conception of judgment, 68–91 passim
theory of meaning/ language, 5, 39– 40,
41– 42, 52– 56, 193– 94
view of identity, 124– 25, 127– 28, 141– 44
See also Brandom, Robert
principles. See also norms, normativism
content and justication of, 14
quest for justication of, 20
property
beauty as not a, 70– 71
legitimacy as (not) a, 8, 13– 14, 19, 40–
41, 42– 43, 48, 52– 53, 60– 61, 66– 67,
98– 99, 191, 195– 96
truth as not a, 56
provisionality, 55, 76, 137– 38, 139, 193– 94
publicity 149. See also space of appearance
Queen Beatrix, 46. See also Joanna
example
queen vs. tyrant, 58– 59, 63– 65
questionability, 104, 108, 116, 136,
138, 139, 144, 145, 151– 54, 183–
84, 192– 93
rationality, 52– 56, 84– 86, 144, 145. See
also space of reasons
and justication of principles, 20, 128
Rawls on, 35
Weber on, 15– 16
rational reconstruction, 36
Rawls, John, 6, 7– 8, 14, 23– 24, 27–
28, 30– 38
realism (political), 7– 8, 13– 14, 25– 30. See
also normativism
reality. See political reality
reasons, 3, 53– 54, 62– 63, 66– 67, 74– 75,
84, 88, 191. See also space of reasons
receptivity, 117– 18, 120, 163, 184–
88, 190– 91
recognition (of legitimacy claim), 51–
52, 86
Red Army Faction (RAF), 45, 47, 60, 104
See also Bundesrepublik example
reective equilibrium, 23– 24
reexivity, 6, 62– 63, 116, 121– 22, 138, 143,
153– 54, 196
regime, 1, 47– 48, 59– 60, 108– 10, 112
rejection (of legitimacy claim), 51– 52
relativism. See subjectivism
Renzo, Massimo, 133, 135
representation
concept of, 96– 98
legitimacy not a representational
concept, 52– 53 (see also property)
of power, 2– 3, 9, 37– 38, 106– 13
practice of, 102– 6
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Rawls and, 35– 36
representational claim, 103– 5, 108
resistance, 43– 44, 45– 46, 48– 49, 82– 83,
95, 121, 136– 37, 192– 93
responsiveness, 9– 10, 113– 16, 124, 145,
151– 54, 183– 84
restaurant example, 74– 78, 83– 84, 163– 66
revolution, 2– 3, 46, 49n.19, 111– 12, 119,
159, 174– 75, 177– 78, 185, 188–
89, 192– 93
spirit of the, 156, 161– 62, 180– 82
right to rule, 1, 13, 18– 25, 28n.47, 47,
114, 192
moralized understanding of, 19, 40
pragmatic account of, 42– 43
rule, dened, 48– 50
Said, Khaled, 43– 44
Saward, Michael, 103– 4
selood, 125– 26, 139. See also identity
collective, 9– 10, 33, 35– 36, 131– 35,
141– 44, 150, 193– 94
self- transformation, 136– 37, 138, 139,
143– 44, 150, 153– 54
Sellars, Wilfrid, 84n.27, 86n.35, 88– 89n.39
sensus communis, 72– 73
Simmons, A. John, 19n.20, 21, 23– 24
Sleat, Matt, 26n.39, 28– 29
social practice, 53– 54, 74, 88
social science, 6– 7, 8, 13– 14, 15– 18,
19, 195– 96
sovereignty (non- ), 23, 55, 61– 62, 66– 67,
78– 83, 147– 48, 151– 52
space of appearance, 78– 83, 84– 85, 89,
151– 52, 198– 99
space of reasons, 54, 56– 57, 59, 70– 71,
83– 87, 148
as politically constructed, 87– 90, 193– 94
spontaneity, 117– 18, 119, 120, 184–
88, 190– 91
Square, e (Noujaim), 117– 19, 143,
181, 198– 99
stance
dened, 52– 53, 64
as exhibited in action, 51– 52
See also politics as stance taking
state, 9, 19– 20, 48, 100, 114– 16
Stilz, Anna, 129– 31
subjecthood, dened, 47– 52
subjectivity, dened, 125– 28
thick, 126, 127– 28, 139– 40, 142
subjectivism, 61– 62, 196– 97
surroundings, 10, 77, 155, 172–
73, 190– 91
Tahrir Square (Cairo), 43– 45, 60, 108– 9,
119, 123, 128, 132– 33, 137– 38, 143,
147– 48, 149, 150– 51, 156, 182, 198–
99. See also Arab Spring
Tamarod, 180
temporality
of judgment, 10, 73– 78, 157, 158– 66
political 10, 167– 82
temporal register, introduced, 170
Terpstra, Marin, 176– 78, 183
theoretical standpoint. See observer’s
standpoint
theory
of legitimacy, 3– 7, 8– 9, 37– 38
vs. practice 6, 23– 24
See also political philosophy, task of
timecra, 10, 155–189 passim
dened, 173, 175
timeframe, introduced, 169– 70
Tomba, Massimiliano, 167n.14, 174– 75
truth, 25, 32, 41, 54– 56, 193– 94
truthfulness, 9, 117– 21, 184– 85
Tunisia, 43– 44, 150– 51, 156. See also
Bouazizi, Mohamed
unilateralism, 152– 53
United States, 177– 78
universalism, 156– 62
validity, 16, 24, 27– 28, 40, 54– 55, 60– 63,
70– 71, 87, 148, 156– 62, 196
violence, 45– 46, 47, 60, 108– 9, 117– 18,
167– 68, 171, 180
virtù, 10, 184– 88
virtuosity, 9, 117– 21, 184
voting. See election
Weber, Max, 8, 13– 14, 15– 18, 41, 63,
115, 195– 96
Weimar Republic, 166
representation (cont.)
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221
Willem- Alexander (of the Netherlands),
46, 110, 175– 76. See also Joanna
example
William I (of the Netherlands), 175– 76
Williams, Bernard, 27– 28, 51n.23, 160n.8
Wilson, Mark, 195– 96
Wittgenstein, Ludwig, 39– 40, 53– 54, 183
Wol, Robert Paul, 19, 114, 115–
16, 128n.8
World War II, 156, 188– 89
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