Given the recent challenges posed by populism and economism, it seems essential to bring the idea of the need for justification of public authority back into the focus of scholarly and political attention. Populists feel in possession of truth and right answers and claim to be the voice of ‘the people’ without regard to opposing views and therefore neglect procedures and legal safeguards to build consensus on truth and values. Based on consequentialist philosophies, approaches such as the economic analysis of law, or the New Public Management, justify public authority mainly by results. However, both (and other) approaches fail to recognize the dignity of human beings and their equal autonomy. Because of these concepts, the political authority needs to be justified - this is, at least, the insight of a long-lasting philosophical tradition. However, does this insight still meet the challenges of times of crisis? Medical expertise has become more due to the Covid-19 pandemic response policy. How far may the experts' influence on the legitimacy of health policy extend? To answer these questions, do we need deontological or consequentialist approaches in legal and social philosophy?
What is necessary is a clear concept of justification for public authority. A distinction should be made between justification as legitimacy and legitimation. The first means the justification of state and law by positive outcomes; the second is the justification by procedures. At this point, however, the theoretical debates about justifications would have to be included. Here, the fundamental questions of the constitution of the self, normativity, values, and social-psychological questions of fears should be taken up and integrated.
Against this background, it may be helpful first to distinguish five elements of the justification of state power (more may become necessary):
- Subject of legitimation – who is entitled to legitimize?
- Object of legitimation – what needs legitimation?
- Need for legitimation – is the legitimacy of results enough, or do we always need procedural legitimation of public authority? Is there a right to justification (Forst)?
- Procedures for legitimation – what kind of procedure do we need to produce sufficient justification? How do policy models contribute to the crisis of justifying forms of government?
- Legitimacy of results – can legitimate results substitute legitimation?