Australian system of law and government legitimate

Do you think Weber's categories of legitimate authority are helpful in understanding what makes the current Australian system of law and government legitimate? Introduction Authority, or 'imperative co-ordination' is defined by Weber as the probability that specific commands will be obeyed by a given group of people1. When one person exercises authority or power over another, he invokes a "principle of legitimation" which the subject views as a binding norm2, and every authority rests upon the acceptance of its validity by the person over whom the authority is exercised.

Although the authority types exhibit this same general structure, they differ according to their legitimating principle invoked and its justification. This paper shall examine Weber's categories of legitimate authority as applied to the Australian legal system and government, and determine whether they provide any elucidating insights as to the legitimacy of the system. Three Pure Types of Legitimate Authority Weber identified three pure types of authority, each of which is based upon a distinct conception of legitimacy.

These three types rarely appear in their pure forms, actual authority structures usually include elements of two or even all three types in varying combinations3. Traditional authority An authority is traditional if its legitimacy is "claimed for it and believed in by sanctity of the order as they have been handed down from the past. '4 Traditional authority has several distinguishing characteristics. It is based on the relationship between a master and his servant or child, and as such, traditional authority is essentially between those with unequal standing5.

Weber indicates that this is due to the 'pathos of distance' – the belief that men are fundamentally different in their natural endowments and social position and the conviction that these differences justify the domination of those over their inferiors6. In any traditionally authority structure, a person's right to rule is ultimately determined by his status, by his possession of certain natural and personal qualities. A second important feature of traditional authority is its association with routine economic activity and, more specifically, that of the household7.

According to Weber, traditional authority is a 'structure of everyday life8', a form of social organization 'rooted in the need to meet ongoing, routine demands'9. Finally, all traditional authority is, to some degree, religious in nature. It is characteristic of patriarchal authority, that the "system of inviolable norms on which it rests is considered sacred"; and a contravention of them would result in "magical or religious evils'10. Legal rational authority Legal rational authority is based upon a 'belief in the legality of enacted rules and the right of those elevated to authority under such rules to issue commands.

11' It is different to traditional authority in that it rests upon a 'system of consciously made rational rules'12, and power can only be justified by the formal process of enactment through which the rule have been promulgated. Consequently, in a legal rational regime, the validity of the rules that that set the limits of legitimate authority depends upon their status as formally correct enactments, rather than their specific content. 13 Another feature of legal-rational authority is their dependence on the principle of 'formalistic impersonality'.

When the members of a legal-rational organization obey a person in authority, they do not owe obedience to him as an individual, but to the impersonal order15. The officials in the legal-rational organization are authorized to carry out responsibilities without 'regard to personal considerations'16. The members of such an organization are thus equal before the law, and represent a 'uniform mass of homogeneity which corresponds to the abstract regularity of the rules which define their rights and duties17'.

While traditional authority base an individual's position in an authority relationship on his possession of some natural or social quality, legal rational relationships rest upon the more abstract notion of 'membership' in an 'organization'. Within a legal rational authority structure, an individual has rights and duties 'only in his capacity as a 'member of the organization18. Also unlike traditional forms of economic organization, legal-rational authority is focused on the rationally managed, profit making firm rather than the household.

Legal rational economic action has no religious meaning as such, but reflects, instead, the exclusion of religious practices and beliefs from the 'sober world of every day existence'19. Charismatic authority Authority is charismatic, according to Weber if it is based on 'devotion to the exceptional sanctity, heroism or exemplary character of an individual person, and of the normative patterns of order revealed or ordained by him'20. The charismatic leader is distinguished by the possession of extraordinary characteristics which are not accessible to the ordinary person, and in particular from his followers.

The exceptional qualities of the charismatic leader can legitimate his claim to authority; however, only if the meaning he ascribes to them is accepted by his followers. As the basis on which the charismatic leader claims his right to rule is extraordinary, the limits of the charismatic leader's authority are therefore not 'bound to intellectually analyzable rules'21. Consequently charismatic domination does not subscribe to abstract laws, regulations and formal adjudication, and the relations between a charismatic leader and his followers cannot be subjected to regulation in a continuous and predicable manner22.

Two further aspects of charismatic authority differentiate itself from the other two types of authority. Firstly, charisma is foreign to economic considerations, which transcends the life of the household, which is central to traditional authority23. Secondly, in its pure form, charismatic authority cannot remain stable, but is "traditionalized, or rationalized, or a combination of both', i. e. through the "routinization of charisma"24. Weber claims that charismatic authority is the only revolutionary force, since it breaks up existing authority structures by introducing new claims of legitimacy.

However, as it is incapable of sustaining itself, charismatic authority undergoes a metamorphosis in the direction of either traditional or legal-rational authority25. Prevalence of legal-rational authority – modern Australian law and government According to Weber, the social and economic organizations of the modern state is characterized by its high degree of rational order on which its legitimacy is based, dominated by legal rational bureaucracies and their rationally managed profit making firms.

In this state, legitimacy centres on the exclusion of arbitrary exercise of power, and political associations abide by a rational written constitution, 'rationally ordained by law, and an administration bound to rational rules or laws, administered by trained officials26. ' Weber points out that under modern conditions political success is possible only if political leader makes full use of bureaucratic methods in order to create or retain political support and that only a few groups have any chance of effectively influencing the process of political decision making.

This seems an appropriate description of the Australian system of governance, that due to its complexity, the only genuine participation of the general population ends at the election of political parties, while at all other times they are reduced to playing a more passive role. However there are exceptions to this case, as there are specialist groups formed with the aim to change particular parts of our legal and governmental institutions.

These include for example the media, which lobbies for the further protection of freedom of information, anti-discrimination groups, same-sex relationship rights and euthanasia associations which lobby for their own respective rights. Weber argues that the validity of legal legitimacy depends on the belief that everything which has been enacted in accordance with established procedures may be considered legitimate27, and that this strictly impersonal nature of governmental authority in the modern state does contain a dangerous potential for abuse.

This also appears to be mostly true of the Australian legislating process, that as long as policies are enacted according to procedures and regulations as considered legitimate by the public, decisions arrived at in such a manner will be considered lawful. This makes it difficult for the citizens to judge for themselves whether government actions are legitimate or not, measured against value-rational standards. At times it appears that the only way the laws in Australia can be ruled as invalid is due to procedural failures rather than because of the law's inherent injustice.

An example is the invalidation of the "annoyance clause" of the World Youth Day Regulation 2008, by the Australian Federal Court in July this year. Despite arguments that this law infringes upon citizen's civil liberties and freedom of speech, it was only invalidated due to the difficulty in defining "annoying conduct" which was too subjective and prone to idiosyncratic reactions to be enforced. However, what works in favour of the established order is not only the belief that formal legality always legitimizes governmental actions, but also tradition.

In fact, Weber points out, the belief in the legitimacy of an established order is strengthened in most cases by the fact that people have grown accustomed to it, and thereby assign legitimacy to it on traditional grounds as well. It is obvious that in 'normal' circumstances of political stability legal domination usually exists in the form Weber describes. Legal or other rationally established norms do often provide the necessary and sufficient title to power and produce ideas of duty in those who are influenced towards compliance. Governments change without change in political systems in which they operate.

At all levels in structure of political authority officials come and go while the structure remains. The concept of formal logical law is the essential basis of Weber's claim that legal domination makes no reference to values in law, and hence that it sustains itself through its purely technical utility for the purpose rational conduct of those subject to authority. But in reality, formal and substantive considerations are inextricably linked in all legal systems, and the development of law, expresses certain value orientations or, at least, implies certain value preferences reflected in legal rules and principles.