Lastly, I want to consider the political analogue of Scanlon’s claim that permissibility is outward-looking. Scanlon claims that permissibility has its functional place in the deliberation of agents; and because intentions do not matter when agents deliberate, they do not matter to permissibility. There is no precisely analogous argument in the political realm. One of the functions of judgements about legitimacy—perhaps even the primary function—is to provide citizens and observers with a means to assess laws, rulers and policies, especially in the face of disagreement (see Applbaum 2004, p. 84).
Still, it is the form of Scanlon’s argument which is promising: to start from the role which permissibility plays in our moral thinking. Similarly, we can ask what role the value of legitimacy plays. The answer depends a bit on the precise way in which we understand the concept, but I think we can make some high-level observations which are independent from particulars. To call something legitimate always means to bestow some privileged moral status on it. If you think legitimacy entails authority, then you are required to obey and defer to a legitimate decision. If you believe that legitimacy is some property weaker than this, a legitimate decision is still one which is binding in some sense: a legitimate policy usually ought not to be actively undermined, and demands our respect and perhaps support and compliance.
This, by itself, is not that different from the concept of permissibility. What is different in the political case is that legitimacy tends to be concerned with collective problems which we need to solve together. We have to decide which political decisions we regard as binding, demanding respect and deference, and which we do not regard in such ways.Footnote 23 What is crucial in such cases is that we coordinate on the same, or at least roughly similar, judgements about legitimacy.Footnote 24 Political aims are normally collective aims which we can only achieve together. We have duties of justice, for example: a duty to secure the basics of public order, to allow everyone the opportunity to lead decent and self-respecting lives and so on. These duties cannot be discharged easily by ourselves, if at all. So establishing justice usually requires a highly organised state with a monopoly of power over a given territory. One plausible function of the benign fanatics’ welfare reform, for example, is to change the way in which we discharge duties of redistributive justice. Thus, calling the fanatics’ reform ‘legitimate’ entails, in this important sense, that the system they wish to implement should work as a binding plan for all of us: the plan how we aim to pursue justice for now.
Observations about the necessity to coordinate can be made across a variety of political theories. Egalitarian theories will demand that we engage in elaborate schemes of resource redistribution, which will be nearly impossible to achieve without coordination. If you think, on the other hand, that we have no or few positive duties of justice, it is still plausible to think that our natural duties of justice are gravely indeterminate. On a Lockean theory of rights and property acquisition, for example, we need to agree on an interpretation of the Lockean proviso, and under what conditions we count consent to political authority as valid. So even for such a view it is important that we have some shared, coordinated understanding of the conditions of legitimacy.
So coordination is crucial to legitimacy across a variety of views. I would wager that it is the crucial function of legitimacy judgements to coordinate solutions to difficult collective political problems. The same is not generally true when it comes to permissibility. We need not usually agree on what we think to be permissible. You might think that eating meat is permissible, while I think that it is impermissible. It is important to get this matter right. But for us to discharge our duties relating to animals, no coordination of our behaviour is necessary. Similarly, the Gangster has various duties against Smith, but he need not first agree with Smith on any particular scheme which specifies how this is to be done—he simply should not treat Smith in certain ways.
If legitimacy is an essentially coordinative value, then we will expect it to have some structural features. One of these features we have already encountered briefly, a strong separation between the substantive merits of a decision and its legitimacy. Politics is characterised by deep, lasting and reasonable disagreement about what should be done. If we could make judgements of legitimacy only on the basis of widely divergent beliefs about which policies are good, just or efficient, then legitimacy could not play its coordinating function. Legitimacy would just reproduce the disagreements it was meant to overcome.Footnote 25 So showing that a decision is legitimate will not primarily depend on arguing that it has various good-making features.Footnote 26
On the flipside, the coordinating function of legitimacy explains the appeal of proceduralist approaches to legitimacy. If legitimacy is primarily a question of which people have been elected into which offices, and whether they have at appropriate times made certain choices in certain procedurally prescribed ways, then we can bracket out many of our substantive disagreements. Indeed, our disagreements are now channelled into this procedural apparatus: claims about how we collectively ought to discharge important duties are resolved through elections and representative political bodies.
What does this entail for anti-intentionalism? I believe that the coordinative function of legitimacy supports to construe legitimacy as an outward-looking value—that is, one that focusses on clearly identifiable, external features of policies and political outcomes, and sets aside the intentions, beliefs and desires of those making these policies. We should focus on what rulers do; but we should bracket out, as far as we can, substantive judgements about the intentions and motives which people have. The idea is a generalised version of the argument I gave previously. There I argued that rights have the function to immunise us from certain kinds of criticism, and so are outward-looking. For this reason we should expect legitimacy-as-right to be outward-looking as well. But even if we do not conceive of legitimacy as a right to rule, we can identify an important function of legitimacy, its coordinative function, and this further supports to see it as outward-looking.
We can also return to sceptical arguments regarding the metaphysical status of intentions. While I dismissed extreme scepticism, a more moderate scepticism claims that identifying the intentions of governments is difficult and unreliable (Waldron 1993, pp. 150–151; Sher 1997, pp. 20–22). Political decisions depend on the minds of a wide variety of people, whose intentions are various and often contradictory. Identifying the driving aim behind a given policy is difficult, and often relies on guesswork. Usually, we simply tend to read back from the content or consequences of a decision to the likely intentions behind it, but this is an unreliable shortcut. To clarify, I do not question that there are collective intentions, or even that in some cases we can identify them; I rely on the much weaker claim that they are hard to discern.
There are also practical disadvantages entailed by an intentionalist approach to legitimacy. Intentionalist principles make it too easy for governments to evade responsibility (Enoch 2005, pp. 56–57; Enoch 2007, pp. 90–91), and to depict their own case favourably. It is easy for a government to claim that it had good intentions, and hard to prove otherwise (Ristroph 2008). So on these grounds, we have practical reasons to avoid an intentionalist standard of legitimacy. But more importantly, the unreliability of knowing governmental intentions enhances the case for not using such forms of information as the grounds on which we make judgements of legitimacy. Governmental intentions are not the right type of defeaters for legitimacy, if our aim is to coordinate our political behaviour.
Let me note one limitation of this argument: there might be some governmental intentions which are so universally clear, and also so clearly condemnable, that they act as defeaters against a legitimate policy. For example, if a policy was made to deliberately keep a minority group destitute or powerless, we may judge it to be illegitimate on that basis alone. After all, a policy being egregiously unjust—and being widely agreed to be so—works as a defeater as well, even if we generally separate the legitimacy and the justice of a policy. The argument from coordination cannot fully exclude such cases; it cannot ground an absolute restriction on what kinds of information we work on. At any rate, while admitting such extreme cases would diminish the philosophical purity of anti-intentionalism, it does not take away from the practical import of the position. We could still rule out, for example, justificatory neutrality as a general constraint on legitimacy (see next section).
The different arguments I have tackled in this section are generic argument strategies available to the political anti-intentionalist; they do not amount to a conclusive case in favour of the position. Lots of the details in each strategy would need to be filled in by a fully worked-out theory of legitimacy—for example, which moral dimensions we aim to distinguish, and how we draw connections between them. The advantage of the strategies I have described is that they are accessible across a wide range of specific theories of legitimacy; they provide a toolbox for defending political anti-intentionalism inside the specific view of legitimacy you favour, but much more work needs to be done.