Dev Raj Dahal
LEGITIMACY is a key site for understanding the nexus among political power, authority, rule, law and popular consent. The legitimacy of legal-rational authority is derived from a system of norms, laws, rights and rules. It is a stable pillar essential for morality, acceptability and institutionalisation of leader, regime, polity or the state. Max Weber expounded the term ‘legal-rational legitimacy’ for the modern justification of action of political power in the best interest of citizens for its ability of timely renewal, approval by them and opportunity to periodically circulate diverse elites in the power of state and civic institutions through election and fair selection. A government worthy of respect and compliance does not use force for its legitimacy but responds to citizens affected by its decisions and resort to non-violent resolution of their grievances and orderly change.
Citizens subjectively feel that the rule, power and authority are justly exercised in their collective interest, protect their personal freedom and determine good ties among themselves and with authorities. Grand strategy of reducing ends-means gap can generate trustworthiness as a cardinal virtue of legitimacy. The legality of rule in democracy is based on the public reason, impersonal execution of procedures and realisation of citizens’ fundamental human rights by those occupying institutional position and authority. Normative and practical reasoning offering justification of the procedure of action of authority is called input legitimacy. At a time of increased scarcity and uncertainty, the efficacy of leaders and the polity rests on the appropriate roles they perform for public welfare.
It is important for output legitimacy, a legitimacy based on the rationality of meritocracy of Nepali leaders in realising the joy of increased rights and reduced duties of citizens they secured in the social contract, the Constitution, spurring them to realise their full potential. The dawn of electoral route and the constitutional tradition of politics have set the primacy of legal-rational legitimacy over traditional authority and the lustre of charismatic rule which is fleeting. As a result, most of elected governments in Nepal have claimed legal-rational legitimacy defined by the Constitution and impersonal set of institutions and procedures which are supposed to be neutral to rival political parties, social classes and ideologies so that citizens ideally find it acceptable.
In a nation of diversity like Nepal with populace nourishing varied identities specific to sub-system, establishment of law based on public reason is the only way to deal with one another and create inclusive institutions capable of fulfilling their objective needs in the context of their lives. Removal of structural injustice is a must for Nepalis’ habitual compliance with the rules of the game. It increases their stake in democracy. If leaders cultivate personal following to fulfil their desires, it fosters personalised clientalism, flags the notion of impersonal citizens entitled with common good, reduces the destitute into sub-human condition and weakens their loyalties to the polity and the state. This is precisely the reason constitutionalism is designed in Nepal to address the social, economic and political cleavages where no side descends to the extreme threatening middle path and legitimate order. The delicacy of Nepal’s foreign policy equipoise is vital to adapt to forked regional colossuses and the metaverse beyond.
In the scrappy politics of Nepal, factors conditioning legal-rational legitimacy can be: deliberative procedures on laws and policies, broad-based support to the governing institutions, efficiency and transparency of public institutions in their tasks performance and rightness of governance apt to legitimate order acceptable to all. It spawns triple benefits: secure authority, reconcile competing conceptions of common good and maximise social welfare. The legitimacy of the governance rests on internalisation of rules and procedures defined by the constitution as a matter of habit. This is why in crafting the Constitution, Nepal has allowed deliberation, bargaining and will of citizens and supposed its safeguard by fair and autonomous courts. Nepali Constitution demands the integrity of judges uncorrupted by political power, financial incentives and geopolitical influence for they need to hold critical faculty of conscience and conscious convictions in deciding cases in a legitimate and fair manner.
John P McCormick argues that the Weberian legal-rational authority requires citizens’ “belief in its legality, that is, in formally correct procedures for creating and applying law.” Nepalis are influenced by the flash of their leaders and hold a belief in the sanity of Hindu-Buddhist tradition. This means its legal-rational legitimacy is influenced by personality cult, rationalism of science and a culture of spiritualism thus producing a hybrid political culture. Legal-rational authority of Nepali leaders and institutions are gradually modified by separate treatment to various social classes such as women, Dalits, Janajatis, Aadibasis, Muslims and minorities claiming inclusive turn, inability to abolish social vices and patronage and incoherent behaviour of actors of social change -- NGOs, civil society, INGOs and special interest groups operating under diverse imperatives than constitutional spirits and widening the boundary of politics beyond political parties whose borrowed ideological fads too corroded legal-rational legitimacy.
Nepali leaders have, therefore, a prime task to redirect the loyalty of citizens to the polity and evade factionalism that constrains the art of lawful governance, settle societal strains and impartially offer public good to citizens. This is essential in transitional times as Nepal witnesses the erosion of authority in all the constitutional organs for their partisan character. Its political culture is mainly paternalistic where hero, father figure or patriarch is exalted regardless of its effects on building democratic political parties entrenched in the equality of leaders, cadres and citizens and impersonality of rule. To perpetuate in power Nepali leaders have formed clientalist groups around them which has amplified personal efficacy but failed to bind restless rival groups, opponents and left out social classes except in the case of coronavirus and territorial integrity of the nation.
A threat to legal-rational legitimacy finds its roots in Nepal in radical and conservative space, rising social struggles of new elites for resource, power, representation and recognition, lethal fallacy of rival logics of legal experts over constitutionality and morality swinging to blind faith on patronage narrative, not protection of public interests and public reason where lawyers of different backgrounds and ideological leaning can agree on general norms without affronting the rational public and sovereign state of pan-Nepali mind
enriched by multicultural fusion, even as it is atomised by tribal politics and the logic of dismal science of neoliberalism.
Deficits in legitimacy occur when citizens withdraw their consent owing to the incapacity of Nepali leaders to control the pervasiveness of corruption, crime, alienation, poverty and agitation and fulfil their needs and rights. In a time of multitude of risks citizens find hard to abide by the rules of the game and look for new leaders upholding fresh values and procedures as solution. In Nepal, the robustness of legal-rational legitimacy can be derived from electoral mandate to govern, international acceptability and satisfactory performance of governance as per its electoral promises, international commitment and constitutional provisions. Democratic sources of modern laws in Nepal are popular sovereignty, public opinion and public international law, not only the fluidity of the legislative-executive-judicial boundary governed by a gap between citizens’ hope and its fulfilment. Its resort to majoritarian-positivist law enacted by the legislature and influence of powerful interest groups refuse to improve human condition and accurate presentation of vox populi in law making beyond its construction on the ground of power equation and material temptation.
Universal reason is vital to harmonise the rational and the empirical world. Obviously, the practice of positivism in Nepal finds the world of laws in an ahistorical way, hits upon trouble in adapting to changing democratic spirit, popular opinion and the zeitgeist. It skews laws in favour of the powerful who can buy the service of legal experts. The source of justification, logical consequences, public reason and fair judgment of courts define the validity of law, its integrity and legitimacy. This means established procedures alone cannot help the judicial fairness if the intrinsic content of case changes from undemocratic to democratic spirits of open and free society strengthened by constitutional right of Nepalis to know, a qualification for active citizenship and enterprises to flourish.
Laws are means to protect the weak, uneducated and innocent. This is the basis of its democratic legitimacy in Nepal against instrumental rationality entertained by pressure groups, anti-systemic political power, dominant interests and commercialised world of consumerism which reduces sovereign citizens into a mere economic animal driven by self-interest animus to welfare state laws that allows the powerless to face fateful choices in life. The legal-rational legitimacy erodes if constitutional bodies and public institutions of discipline, truth and enlightenment of Nepal are left partisan, privileges of elites remain above the law and politics is deregulated, like economics, devoid of modern sensibility of democratic control and self-rule.
Plenty of rights and enormity laws do not make a good society if socialisation of public authority is poor and public rationality is devoid of what Weber calls “ethics of responsibility” and “ethics of conscience.” Legitimacy has broadened its sphere in Nepal as legal bases of its state institutions, polity, government, political parties, civil society and family are changing with the spirit of human values and ecological justice. Juergen Habermas is right when he says legal-rational legitimacy is shifting toward “moral-practical rationality.” Now Nepali state is declared secular, federal democratic republic. It has removed supernatural, cultic and centralised claim to legitimacy. Its democracy embodies inclusive, participatory and egalitarian character which makes political power legally and morally accountable to citizens.
(Former Reader at the Department of Political Science, TU, Dahal writes on political and social issues.)
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