Justice and Legitimacy

Philosophos: Can a legitimate government be unjust?

Nomodiphas: Of course. We can choose and have chosen many bad governments that do not make and enforce just laws. These are legitimate because we have chosen them, but they are not just. In contrast to this we can have just governments that are not legitimate; governments that impose themselves by force on us, but who rule justly.

According to the early Biblical account the human race originated with no human government, in a state of complete liberty and equality. This liberty and equality was not complete moral license, rather there were two types of laws. The first was a created, specific law given for the benefit of humanity, the second an uncreated, eternal law that functions as the basis of justice—the natural law.

The specific command was to not eat from one specific tree. It was a simple prohibition, not a positive command that necessitated work. In the midst of a garden full of vegetation, this was one of the simplest laws that mankind was ever told to follow. This law was not an arbitrary decree given by God, legitimated through his omnipotence; rather God was able to give this law because the first people tacitly consented to obey God’s commands by freely choosing to live in the garden. If the first people did not want to obey his commands they were free to leave the garden and live any place in the largely unoccupied world. This was a specific law, created in time, it was not eternal, it would not be valid in every possible universe, and it applied only to the two citizens of the garden for a finite period of time. That decree was legitimate because it was freely consented to by those who received it.

The other type of law is that of eternal justice. It is do not murder, steal, commit adultery, etc. There is evidence of this law immediately as well. In the second generation the bible mentions two brothers, Cain and Abel. After an unknown period of time “Cain rose up against his brother Abel and killed him.” God punished Cain by cursing the ground that he worked and made him “a fugitive and a wonderer on the earth.” At this point in time the Bible has made no mention of a human government or any laws. If justice were nothing more than the law, then Cain’s action would not have been wrong and would not have merited punishment. However justice does not require law. As the Apostle Paul said in his letter to the Romans, “sin was indeed in the world before the law.” Justice exists outside of any government, law, and without the consent of the people, whereas legitimacy is rooted in the consent of the people. Just laws do not require the consent of the people for their validity, but procedural or administrative laws (laws that are needed to order a society, but exist beyond the realm of justice) do require consent.

Philosophos: Ok, so justice and legitimacy are two different things, I would assume that the best government is both just and legitimate. Further I think you would agree with me that any form of government can be both legitimate and just, but it is more difficult for some forms to be these things and that is why we prefer some forms over others.

Nomodiphas: Agreed.