Categories: Potter Gold

Two Concepts of Legitimacy

I think it might be useful at this point to introduce into our conversation…

by Andrew Potter on Wednesday, December 3, 2008 8:42pm - 47 Comments

I think it might be useful at this point to introduce into our conversation a distinction employed by Campbell Sharman in his excellent IRPP paper on reforming the Senate. The distinction is between input legitimacy and output legitimacy.

Input legitimacy relates to the functioning and machinery of an institution: how members are selected, the procedures by which decisions are made and power exercised, and so on. Output legitimacy refers to the public assessment of the relevance and quality of the institution’s performance. As Sharman writes, “Both forms of legitimacy express public assessment of the worth of an institution, but input legitimacy is a matter of the design of the institution while output legitimacy must be earned by the institution’s performance.”

Coyne has written elsewhere on this site, and I obviously agree with him, that — despite the prime minister’s best attempts at convincing Canadians otherwise — there is nothing remotely illegitimate about the coalition’s attempt at taking the reins of parliament. It is, as far as I’m concerned, little more than the predictable contortions of parliament in an extended minority situation.

But obviously many people feel otherwise, and while I’m tempted to dismiss this as a failure of basic knowledge of civics amongst Canadians, that misses an element that Sharman’s distinction teases out, which is the requirement, ultimately, that the output of an institution be acceptable to the people. Both forms of legitimacy are important, but there is the question of priority. Normally, we tend to think that IL determines OL: That is, we accept the outcome of an election, or a vote in parliament, or what have you, because it has high input legitimacy. To put it another way, as long as the rules are followed we accept the result.

But it is not that simple, and in the end, I’m inclined to think that output legitimacy has priority. That is, a certain institutional design will only be (input) legitimate to the extent to which it tends on the whole (note the hedging here) to produce acceptable (that is, output-legitimate) outcomes.

So where does that leave us? I think, with a caution to both sides. Harper says he will use all legal means to maintain power. But that has its dangers, for both himself and his party (ask Paul Martin) but also for public perceptions of the system as a whole. Just because something is legal doesn’t make it the right thing to do, and nobody like a stickler for the rules. Clinging to power through any means possible can bring the system into disrepute.

For the coalition: They need to be aware of and sensitive to public opinion. Just because they can take down the government and seize power does not mean it is in their own long term interest (again, for the Libs I think it is a BAD IDEA), and, worse, it might serve to undermine the input-legitimacy of the system in the public mind. That is, the public (e.g. Jon Kay) might look at what is going on and think: Any system that allows this to happen can’t be legitimate.

There is a lot at stake here. Our parliamentary system is old, established, and far more flexible than people give it credit for. It has consistently given Canadians effective and reasonably stable government while doing so with a large degree of IL and OL (pace Coyne’s distressing habit of declaring our federal elections borderline illegitimate). But every institution has its limits. The more these maniacs twist and pull and bend with no regard for the stresses they are imposing, the more dangerous this all becomes.

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Karol
i warned you not to repeat . I’m going outside to shoot myself ; i suggest you join me.
Austin So

This was a great piece. Thanks Potter!

While in some sense OL can take precedence, it also happens to be the most subjective and most prone to manipulation. Focusing only on OL basically recreates the “does the end justify the means” conundrum.

On the other hand, IL is less subjective: you try to create the best system/process. Ensuring IL, you can be certain that the OL will follow suit. As long as the process/institution has integrity, then the output will be a true reflection of the input. But if that is not the case, then there is no assurance either way.

So attacks on an institution largely rely on discrediting its IL. The Senate. Elections Canada. The Supreme Court. etc…

Austin
Fletch

Mr Potter: First I think such jargon should stay with the academics pursuing tenure. But the basic point about legitimacy is this: the opposition parties had accepted the legitimacy of the Tories’ mandate to govern following the Oct 14 election. They accepted its legitimacy by approving the Throne Speech and, oh yes, by the very fact the Liberal leader resigned his post – clearly a sign that he understood the verdict of the people. Coalitions are created in the immediate hours or days after an election, before anyone in Parliament is willing to accept that one of the parties has a mandate to govern. This was not the case here. Everything was going fine, until the Conservatives (foolishly) tried to take away the parties’ public subsidies. That’s when the coalition-building started in earnest and that’s why this coalition has no legitimacy. They had accepted the legitimacy of the Tories’ mandate after the Oct 14 election. The people had accepted Harper’s mandate to govern. What is happening now is a power grab based on opportunism.
Rich

Fletch, your huffing about legitimacy is laughable. If the governement is legitimate it will stand and face the confidence vote in the House on Monday. We both know it has no intention of doing so, not because it’s not legitimate but simply because it knows it will lose. It’s the mentality of a six-year-old: I’m taking my toys and going home because I’m not getting my way at playtime.

The Conservatives only received a MINORITY mandate. In their zeal to destroy their opponents, they momentarily forgot this. That’s their problem.

And one more thing – please spare us about “opportunism”, unless you’re willing to oppose Prorogation when the government has not finished (or in this case, barely even started) its legislative agenda.
Fletch

Rich: I think we both agree that this should be settled based on democratic principles. So I’ll be happy to see Parliament avoid being prorogued, if the coalitionists call an election (now, not in 18 months) and let the people decide. Don’t you think it’s rather undemocratic to see a party ,12-seats away from a majority, sitting on the Opposition benches just two months after winning an election that almost everyone agreed was a “strengthened mandate”? In its place will be a lameduck party leader with barely half the number of seats and propped up by a party with representatives solely from one province. Would that be good for Canada? Let the people decide.
Rich

Fletch: having a coalition of opposition parties replace a sitting minority government seems perfectly democratic to me. It’s not undemocratic in any way for the Conservatives to get booted out – they didn’t win a majority and they have to continually earn the confidence of the House. That they couldn’t manage to do this isn’t a result of some underhanded scheme – all they had to do was talk to the opposition about some economic strategies to help ease the recession. Their base partisan instincts took over instead and now they’re paying the price.

Our opinions about what’s good for Canada don’t really count. My own opinions are that minority governments are good things. I prefer to see parties have to co-operate. I also think virtually any combination of the other parties could govern more effectively that the Conservatives, who are completely out of step with most Canadians on hugely important issues such as the role of government in the economy, global warming, and national unity. The point of this whole thread is that just because you don’t like the outcome of an institution it doesn’t mean the institution isn’t legitimate.
ken braithwaite

I think you are missing a trick. There is nothing written that forbids the takeover. But parliament is supposed to be governed by precedent unless unprecedented circumstances arise. Thus stare decisis gives stability without losing flexibility.

But there just isn’t a precedent for this — passing the cabinet across the aisle — other then King-Byng, and of course the upshot of KB was the decisive repudiation of Byng’s decision in the next election. (It even led to a change of statute law in Westminster, so you cannot plausibly argue that election was not seen as a repudiation.) If there is no precedent then you need an unprecedented crisis, and that is nowhere to be found. So the putsch is not legitimate. What is legitimate is forcing an election. That is what precedent allows.
Rich

If you want to rely on precedent then perhaps you could point to a precedent where a government suspends Parliament to avoid losing a non-confidence vote.

There is no “unprecendented” crisis. There is simply a minority government that miscalculated. As I said earlier, it is rare but that’s because most minorities can remember that they are outnumbered. You are trying to claim the process is illegitimate because you don’t like the potential outcome.
MarkCh

Andrew, this is the best thing you have written on the crisis. It is also a helpful way to think about the evolution of our constitutional system. Consider pivotal events like Magna Carta, 1688, the establishment of the Prime Ministership, Reform, and the Parliament Act of 1911 (and King-Byng too). In each case, the nature of input legitimacy going forward was changed in order to give the system more output legitimacy. The stimulus was often a case where impassioned operators tried to achieve (or maintain) an outcome which, while not offending against input legitimacy, offended against output legitimacy big time. This current crisis is one such case, and I am fairly confident that, had we gone to a confidence vote on Monday and the GG refused a dissolution, the accepted conventions about when the GG could in future refuse a dissolution would move in favour of the Prime Minister. Hopefully, with prorogation, the coalitionistas will cool down and either agree to an election or pass the confidence votes in January. Otherwise, this crisis is likely to bring about permanent (unwritten) constitutional change.
Rich

That’s very thoughtful MarkCh. I’d revise your conclusion slightly:

“Hopefully, with prorogation, the Dictator will cool down and either agree to cooperate with the Opposition Members that form the majority of the House or else tender his resignation. Otherwise, this crisis is likely to bring about permanent (and undemocratic) constitutional change whereby governments can suspend Parliament whenever it is in their own political interests to do so.”
MarkCh

Good comment, Rich. The reason why I am hoping the coalitionistas cool down, and not Harper, is that, in the end, I believe that output legitimacy comes from the voters, and only an election can sort things out now. A Conservative vs Lib-Bloc-NDP election will tell us who the people want and establish both kinds of legitimacy.

I agree that proroguing in these circumstances is also lacking in output legitimacy (while definitely not lacking in input legitimacy), but this time I think Harper will get away with it, because he is clearly not doing it to avoid an election. I think the best solution would have been for the GG to assure Harper that she would grant a dissolution on Monday after a lost confidence vote, on condition that Harper did not ask to prorogue today.

Since Harper proposed co-operation in his speech last night, I don’t think we need to wait for January to consider that. What we actually need are specific proposals from the oppostion.
T. Thwim

Except, Mark, that this isn’t a two party system. Even if you’re assuming the Liberals and NDP will run together as a coalition (and they won’t, they were merely cooperating, not merging), there’s still the Conservatives, Bloc, and Greens.

After slagging off Quebec and with no real room to grow out west, the odds of them getting a majority for the next several years have gotten increasingly slimmer. So what happens if once again we end up with a minority parliament, where no party holds enough members to run the house on their own? Is and NDP/Lib coalition still wrong? Do we have to keep re-running elections until we get the results that you want?
Rich

Why does the Coalition need to cool down? They’re exercising their democratic rights by opposing the government. Stephen Harper should have proposed co-operation last week. He promised it after the election and he was clearly lying through his teeth. At any point up until now he could have tried to work with the Opposition for the good of the country but he’s utterly incapable of thinking about anything besides his own political gain. If anyone needs to cool down it’s the guy who has been running the country as if he controls the majority of the seats when he clearly doesn’t. If you want to talk about specific proposals on the economy, where are the government’s? Probably out on date with the last shreds of the Governor General’s integrity.
MarkCh

Nope, an NDP/Bloc/Liberal coalition, just like the one announced, would be perfectly legitimate, then, as a) voters certainly know it is a possible outcome and b) the Conservatives would not be able to pass ANY confidence votes in the new Parliament, unlike this Parliament, where they already have, which gave Harper considerable output legitimacy as Prime Minister.

This could be called into question if Dion and Layton credibly repudiated the N/B/L coalition during the campaign, and then wanted to implement it after, but I don’t think anybody sees that happening.
MarkCh

The reason the coalitionistas should cool down is that the coalition, should it be put into power without an election, is severely lacking in output legitimacy. This seems obvious to me and to many Canadians, but evidently not to Rich and T. Thwim.
MarkCh

The coalition’s lack of output legitimacy is greatly increased by the very obvious fact that the only real reason they don’t want to go to an election is that, having tipped their hand about their plans, they think they would lose. If the opposition thought that they would win (defined as holding the Conservatives to a minority or less), they would go for an election now.
Rich

It only lacks output legitimacy to you, Mark, because you obviously don’t understand how parliamentary systems work. Why don’t you tell us exactly which members of the coalition were not democratically elected to the House?

I’d suggest an election which generates a minority government that a) refuses to cooperate with the other parties in the House and b) suspends Parliament when is in danger of losing power doesn’t exactly reek of output legitimacy.
Rich

Before you tell me this is why we need another election, I’ll add the following:

1. We only had the past election because Harper broke his own election law. He spent $330 million dollars worth of public money to get the same result he had going in.

2. An election isn’t required because the Opposition has the legal right to form a new government. If it governs as ineptly as you are certain it will it will quickly crumble and be judged by Canadians in an election at that point.

I think you’ve been reading too many Conservative “talking points”. The whole affair is 100% Harper’s fault yet he has done absolutely zero to try and rectify any of the damage done other than that to his own backside. Even last night he could have offered a small mea-culpa and invitation to the opposition to try and work out an economic plan. He couldn’t bring himself to be a statesman even for 5 minutes.
Brad Sallows

“So if we don’t like the outcome then the process must be flawed, right?”

OL will always have primacy, and life is easier if everyone acknowledges that fact and works to support it. If OL is unsatisfactory, the rules for IL will be changed. Sometimes that process can be protracted and messy. It’s often with hindsight that people regret not spending more time working on OL.

We now have a cooling off period. Time to add details to what’s on offer and think it over.
Brad Sallows

We don’t need another election now because we have prorogation. What was needed was a chance for people to absorb the changes in the various parties’ positions and platforms since the Oct election. Either prorogation or an election could serve that purpose. We have prorogation. Some people might have liked to stampede the herd and present a fait accompli without much time for the voters to consider the agenda, but that opportunity has passed. Thankfully.
Rich

Interesting point Brad. We can then look at Prorogation through the same lens, can’t we? The input legitimacy of the Governor General agreeing to the PM’s request to prorogue seems high – on the surface this is standard operating procedure?

But what about the output legitimacy? A democratically-elected Parliament has been shut down because the government wanted to avoid the outcome that a Parliamentary session would bring. The Governor General has now legitimized this as a tactic for any future government in trouble to use. If Parliament’s not working in your favour, just shut it down until such time as conditions might become more politically favourable to you. It’s much like the way my 6-year calls Time-Out right before she’s about to be caught in a game of tag. On its own the tactic is legitimate, but the result it produces is not.
Brad Sallows

The democratically elected government shuts down over Christmas anyway. It’s fair for the G-G to weigh what’s at stake on the legislative agenda when considering a request to prorogue, as well as consider whether the elected members might be too hasty by half in what they are setting out to do.

Can the G-G exercise her power to summon parliament independently? (I have no idea, although I realize the G-G formally exercises the power.) If so, no government has the power to dodge its day of reckoning indefinitely. If not – Gs-G don’t have to grant every request for prorogation if they feel the process is being abused and not in the interests of the country. While one may then counter that Harper is abusing it, the G-G can recognize that and still conclude that a cooling off period is in the best interests of the country. Perhaps that was discussed during the long interview Harper had with the G-G.