Reconceptualizing Empirical Legitimacy for Situations of Severely Conflicting Social Interests

Miranda Boone*, Mieke Kox

*Corresponding author for this work

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Abstract

In this contribution the argument is made that the current operationalization of empirical legitimacy falls short in cases of severely conflicting societal interests where alignment on moral values between conflict resolution authorities (policy makers, courts, controlling institutions) and subordinates is lacking. We attribute this shortcoming to two dominant features of the empirical concept of legitimacy and the research based on it: first, the overwhelming procedural character of the empirical legitimacy concept; second, the dominance of deductive, quantitative survey research. The argument is substantiated by the results of ethnographic fieldwork among unauthorized migrants that show that the existing approaches are important, but insufficient to explain the constitution of legitimacy perceptions of subordinates in this field. Feelings of justice are seriously violated because fundamental substantive needs are insufficiently taken into account according to these migrants, although this does not always mean that they feel badly treated in terms of the current empirical justice concept. In the discussion we reflect on the consequences of these insights for the conceptualization of empirical legitimacy and argue that these insights are not only important for our understanding of empirical legitimacy, but should also lead to a reflection on the (interpretation of the) normative frameworks on which decision-making in this field is built.
Original languageEnglish
Article number19(2)
Pages (from-to)13-25
Number of pages13
JournalUtrecht Law Review
Volume19
Issue number2
DOIs
Publication statusPublished - 12 May 2023

Bibliographical note

FUNDING INFORMATION:
The fieldwork abroad was supported by the TalentFund of Erasmus School of Law [personal grant to Mieke Kox] and the Erasmus TrustFund [to Mieke Kox].

Research programs

  • SAI 2005-04 MSS

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