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Legality, legitimacy and the form of political power: on the construction of a false antinomy

This article argues that debate about the relation between legality and legitimacy is the defining concern of western political philosophy. However, it claims that analysis of this question often utilizes rather unreflected conceptual forms, which are largely derived from the antinomical structure of originally metaphysical accounts of the relation between law and power. This inherited theoretical apparatus obstructs adequate and evidentially sustainable discussion of the legal sources of legitimacy, and, by focusing on power as antinomically related to law, it undermines the ability of normative approaches to political institutions to explain why certain legal forms, especially rights, are objectively necessary, or at least probable, preconditions of power’s legitimate exercise. The article claims that appreciation of the legitimating function of legal norms and rights can only be obtained if the metaphysical pre‐constructions that inhere in normative theory are abandoned. To this end, it proposes an alternative to classical normative analysis by outlining a historical‐functionalist method for examining legality and legitimacy, and it explains how the legal/normative structure of legitimate power can be explained through examination of the internal‐evolutionary formation of power as a positive medium of political exchange in modern society.