Efficacy allows of a yes or no answer whereas efficiency is a matter of degree. Something can cost
more or less time, money, effort to reach a purpose. It’s not always the most efficient production or
realisation of the purposes of regulation that are most desirable from a moral or legal perspective.
Legitimacy is the rightful entitlement to act or function in a certain way. Distinguish legitimacy from
terms such as legality, moral justifiability and authority. Often there is a discussion going on between
people with different backgrounds/from different groups. People from social sciences (public
administration) tend to talk about legitimacy in an empirical way, referring to the actual acceptance
of regulation or a policy. They might be talking about the degree of acceptance. When people are
talking in an empirical way, then they are talking about the acceptance by the ones that are affected
by the regulation. Legal scholars talk about legitimacy in a normative way, meaning that some extras
come to the definition of legitimacy. The empirical way is the actual acceptance and the normative
way is why it should be accepted. Try to mention whether you’re using the empirical or the
normative conception of legitimacy.
There is three dimensions to legitimacy:
I. Social, the degree of acceptance/agreement
II. Legal, degree to which the policy is in accordance with the law, the degree to which there is a
connection with the law or the recognition by legal entities
III. Moral, the accordance of a policy or regulation with moral principles
The three can overlap, because the person who is affected by the regulation may be morally or
legally be inspired. The accordance with procedural rules might be also required by moral principles.
So there are mutual relationships and mutual overlaps. The function of the normative conception of
legitimacy, compared to the empirical one is the difference between natural law theories and
positivism.
Gustav Radbruch was a German legal scholar/lawyer in a time when legal positivism was the main
idea, but he was no positivist, he was a natural law theorist. A positivist view of the law is really
looking at the letter of the law, there is no exceptions to it. The law as it is, is the law. For instance,
according to this view it was very hard to condemn the Nazi criminals as there was a Nazi law,
whereas according to a natural law view (introduced again by Radbruch as a counterbalance of the
overwhelming positivist view of the law) it was not. He claimed that something like a moral law
existed above the law. He was in search of universal, fundamental moral principles that were above
the law and could act as touchstones for the actual law. There is a reference being made to the clash
between positivism and natural law because it is the same here. In the positivist idea of law, law as it
exists is the right law. According to the natural law theory it might be desirable to change the law in
the light of universal more fundamental moral laws. With regard of the empirical view to legitimacy,
with regards to acceptance, lawyers would say we need an empirical acceptation; every piece of
legislation accepted by citizens is legitimate. This is something that many legal scholars would not
accept, they would say no, in order for it to be legitimate, a policy needs to be more than just
accepted, it also in accordance with the law and with some moral principles.
Many people care for the reasons that are behind legitimacy of regulation. If we don’t pay attention
to the legality and morality, the regulation might not be accepted. For that reason, efficiency and
efficacy perspectives come in again (because it is more efficient and effective to strive for legitimate
regulation than not to do so). With regards to regulation through technology the legitimacy issue is
of special importance. Often the enforcement of regulation through technology are delegated to
private parties, they are acting on behalf of the governmental agency. Normal kind of legitimizing the
more or less time, money, effort to reach a purpose. It’s not always the most efficient production or
realisation of the purposes of regulation that are most desirable from a moral or legal perspective.
Legitimacy is the rightful entitlement to act or function in a certain way. Distinguish legitimacy from
terms such as legality, moral justifiability and authority. Often there is a discussion going on between
people with different backgrounds/from different groups. People from social sciences (public
administration) tend to talk about legitimacy in an empirical way, referring to the actual acceptance
of regulation or a policy. They might be talking about the degree of acceptance. When people are
talking in an empirical way, then they are talking about the acceptance by the ones that are affected
by the regulation. Legal scholars talk about legitimacy in a normative way, meaning that some extras
come to the definition of legitimacy. The empirical way is the actual acceptance and the normative
way is why it should be accepted. Try to mention whether you’re using the empirical or the
normative conception of legitimacy.
There is three dimensions to legitimacy:
I. Social, the degree of acceptance/agreement
II. Legal, degree to which the policy is in accordance with the law, the degree to which there is a
connection with the law or the recognition by legal entities
III. Moral, the accordance of a policy or regulation with moral principles
The three can overlap, because the person who is affected by the regulation may be morally or
legally be inspired. The accordance with procedural rules might be also required by moral principles.
So there are mutual relationships and mutual overlaps. The function of the normative conception of
legitimacy, compared to the empirical one is the difference between natural law theories and
positivism.
Gustav Radbruch was a German legal scholar/lawyer in a time when legal positivism was the main
idea, but he was no positivist, he was a natural law theorist. A positivist view of the law is really
looking at the letter of the law, there is no exceptions to it. The law as it is, is the law. For instance,
according to this view it was very hard to condemn the Nazi criminals as there was a Nazi law,
whereas according to a natural law view (introduced again by Radbruch as a counterbalance of the
overwhelming positivist view of the law) it was not. He claimed that something like a moral law
existed above the law. He was in search of universal, fundamental moral principles that were above
the law and could act as touchstones for the actual law. There is a reference being made to the clash
between positivism and natural law because it is the same here. In the positivist idea of law, law as it
exists is the right law. According to the natural law theory it might be desirable to change the law in
the light of universal more fundamental moral laws. With regard of the empirical view to legitimacy,
with regards to acceptance, lawyers would say we need an empirical acceptation; every piece of
legislation accepted by citizens is legitimate. This is something that many legal scholars would not
accept, they would say no, in order for it to be legitimate, a policy needs to be more than just
accepted, it also in accordance with the law and with some moral principles.
Many people care for the reasons that are behind legitimacy of regulation. If we don’t pay attention
to the legality and morality, the regulation might not be accepted. For that reason, efficiency and
efficacy perspectives come in again (because it is more efficient and effective to strive for legitimate
regulation than not to do so). With regards to regulation through technology the legitimacy issue is
of special importance. Often the enforcement of regulation through technology are delegated to
private parties, they are acting on behalf of the governmental agency. Normal kind of legitimizing the
