A recent ‘survey’ on who is on which side in the unfortunate saga unfolding in Fiji left me rather bemused as on one side I see two of my cousins at the forefront of overt resistance against the interim regime and its programmes. On the other I see another close cousin spearheading one such programme. By looks and purposes, all believe deeply in the work they are currently engaged in. The preliminary question that comes immediately to mind is: Whose claim is more legitimate? This question encapsulates the dilemma we are facing in Fiji today – that of legitimacy.
The din surrounding the High Court judgement on the legality of the President’s actions and later, Justice Jitoko’s order on the NCBBF-sponsored charter as well as Justice Byrne’s subsequent stay order on Jitoko’s ruling until further deliberations, brings into sharp relief the way in which supporters and detractors alike, of both the interim regime and its opposition, tend to define the concept of legitimacy increasingly in legal terms.
What is legitimacy and how is it determined?
Legitimacy, in a modern sense, is a state of being that is achieved on the reasoning that certain validity claims have been vindicated based on their rational content. Validity claims are the ways in which legitimacy can be grounded and are derived from the differing value spheres in society. As such these claims are always contested and are usually couched in the disciplinary lexicons of discourses such as science (including for example history, politics and jurisprudence), universal morality (e.g. religious doctrines) and group ethics (e.g. cultural values). Indeed proof of the legitimacy of a claim is constantly attained through the contestations between validity claims.
If legitimacy is generated by the contestations of competing validity claims grounded in different value spheres, then this suggests that there is an inbuilt moment of indeterminacy that defines the relationship between legitimacy and validity claims. Phrased another way, there is a ‘gap’, or an interstice between Legitimacy and the various ways it is grounded. This interstice is the site of contestation between competing validity claims whose rational contents are put up for scrutiny. The nature of the contestation between validity claims effectively transforms the interstice into a ‘force-field’ of both opposing (negating) and corresponding (empowering) impulses. When impulses correspond, validity claims are said to be in agreement thus legitimacy becomes stronger. When they contradict, a new mandate has to be found.
When a validity claim has been overwhelmingly undermined by contradictory impulses in the process of contestation, it becomes self reflexive. That is, it turns ‘inwards’ to re-examine its rational kernel, the metaphysical assumption being that, the ultimate rational grounding of that kernel is the same one that informs other validity claims from other spheres. Therefore a validity claim loses its currency only by the misrepresentation of its own rational intent. In clear contrast to what postmodern currents would have us believe, the contested nature of these claims presupposes the idea of an absolute value still existing in today’s modern world. The presence of a concept of the absolute in our rational world, in fact, makes concepts like legitimacy and justice possible. It is only the structural differentiation of spheres that accompanied modernity that has made it as if there is no absolute value that defines the ways in which validity claims are represented, thus making out as if these contestations consist of incommensurable claims.
Another problem we encounter is when legitimacy is internalised to a particular discourse at the expense of others. Historically this came about in Fiji as a result of tribal warfare, Christianity, Colonisation, Capitalism and Statehood. A close scrutiny of these examples highlights the fact that the internalisation of legitimacy to particular discourses always involves some form of coercive power.
A more contemporary example of how legitimacy is increasingly internalised to a particular discourse in Fiji today can be seen in the tendency of people to view the legal system as an antidote to all social ills irrespective of their specific natures. This suggests a disturbing lack of faith in mediation processes that lie outside the ambit of legal procedures to solve problems peculiar to their own respective spheres. One of the reasons for this can probably be attributed to our recent history of coups and their concomitant constitutional crises. Rightly so problems of this nature are for the courts to decide. However one must also be aware that these kinds of problems can also have a ‘spill over’ effect on other value spheres. Yet instead of a solution intrinsic to the value sphere in question, people increasingly prefer to take recourse within another value sphere, in our case, the legal system. Naturally this gives rise to a contest between the validity claims derived from the two value spheres in question. This is not bad in itself, as long as impulses ensuing from the force-field within the interstices that link the value spheres and their respective validity claims with legitimacy correspond. In other words, the strength of a legitimate judgement is contingent on the degree of correspondence between the competing validity claims. What is often glossed over today is the fact that, in instances of these nature, legitimacy relies in equal measure on the ‘support’ of the validity claims derived from the two value spheres in question even though this may be articulated in the language of only one.
The problem begins however if we were to have predominantly negating impulses characterising the contestations within the interstices. This would mean that the ensuing legal judgement will suffer from a lack of legitimacy. This lack would subsequently manifest itself primarily in two ways: in the divisiveness between people affected differently by the judgement and the increasing disempowerment of processes intrinsic within the non-legal value sphere to deal with questions of legitimacy within that realm. A combined effect of such a situation would be the indifference and passivity that arise within our midst.
Let me give an example. Increasingly we see chiefly title disputes ending up in the court of law as if this was merely a legal matter. The reasons for this basically fall within two interrelated categories. It could be either there is acute disagreement between the validity claims within the same cultural value sphere or, secondly, the socio-cultural mechanism that deals with these internal validity claims are not sufficiently geared to mediate between claims. To put it in very simple terms, the cultural yardsticks in which these matters are adjudicated are too inconsequential or ineffective for mediation. Both reasons suggest that the claims cannot be articulated fully by the mechanism available within that particular sphere. This in turn would spur the move to find legitimacy in the legal sphere, with the tacit hope that once the dispute is couched in legal terms, the impulses generated by the legal sphere would dovetail with one of the competing validity claims within the cultural value sphere. This would lend legitimacy to the ensuing legal judgement. It also shows that legitimacy is a product of mediation and cannot be relativised. Based on this scenario, it becomes apparent that legality is just one way of achieving legitimacy. This brings us back, finally, to those court cases that were cited in the beginning of this paper. How are we to view them in light of the discussion above?
It has become apparent given the plethora of conflicting opinions on the recent court judgements that there is a crisis of legitimacy that is blighting our political landscape. However the root of this crisis lay not so much in the legal realm as in the social and political spheres of our collective existence, notwithstanding the fact that there is a lot of interpenetration between these spheres. In light of this the view that the recent court judgements on President Ratu Iloilo and on the NCBBF, does not in any fundamental way solve our problems is consistent with the discussion above. This view still applies even if the learned judges in question had ruled differently.
The dilemma is not so much a question of legality as it is a question of ethics and morality. It is about how we relate to each other in this country and no legal judgement can fully solve this dilemma. Constitutions may point to legally enforceable rules and regulations that may help but that is where they end. As I see it, the spirit of our Constitution is yet to be fully appreciated at that level in society that is made up of the minutiae of the existential process that we call ‘living’. More work in the sphere of social relations needs to be done if we are to change this lamentable status. In fact the constitution will only factor in the everyday lives of the people of Fiji if it is successfully transcribed into the values that people use to relate to each other. Otherwise it will always be vulnerable to the machinations of people whose value spheres speak of a different message than that enshrined in the constitution.
For instance the Qarase government though legal was notorious for its more controversial policies; all done within the banner of constitutionalism. A democratic mandate to rule, derived from an election can, in this way, be transformed into a ‘tyranny of the majority’. A crisis of legitimacy ensues from such situation. The government could be perfectly legal but lacks legitimacy in the eyes of those who have been adversely affected by it. This is the double edged rapier that all forms of popular rule have to grapple with. Understanding legitimacy in this way underlines the point that a democracy is more than just elections, indispensable as these may be. It is also highlights the limitations of the law in the particular context of our crisis.
The law deals with legal constitutional logic derived from precedents whereas our problem is rooted within that part of the human psyche in which the validity claims of ‘group ethics’ and ‘universal morality’, are in a perpetual contest. The former is embedded within group psychology (cultural values, outlooks etc) while the latter finds expression in our common humanity and includes transcendental questions on the conduct of ‘the good life’. From here, one begins to see the bogus nature of the view that legality and legitimacy are one and the same. Indeed the current tendency of unproblematically identifying legitimacy exclusively with legality has put an ideological caveat on our ability as well as our freedom to view our national predicament in a way that transcends (not bypass) the legal/illegal divide. It is as if we have, for some unfathomable reason, voluntary put on mental blinkers in a time where the challenges that face us are at their greatest; challenges of attaining the basic necessities for a meaningful life in a daunting national and global environment. In Fiji’s context, this is about the legal dimension and much more besides.
For our democracy to work we must first realise that our lives are tied irrevocably with each other on an elementary level. As such we need to have common normative outlooks as to what is important to our well being. The ‘conditions of possibility’ (to phrase it in Kantian terms) of a new horizon that is the product of our collective dreams for our nation must be enabled. For this to happen we must have leaders from all walks of life initiating a vision that will unite us. An important part of this process must also be about giving each other hope in a shared destiny, for such a thing in the face of the despair that currently confronts us is no simple optimism but courage itself. For all this to begin, however, we must get off our haunches and work towards it. No ‘cargo’ is going to fall from the heavens without us willing and working for it. Indeed we must all start believing in ourselves and our capacity to transform our country. Only then can we finally have the resolve to test the resilience of our spirit, as individuals, a community and as a nation, in the face of these seemingly insurmountable odds.
Tui Rakuita
Lecture – School of Social Sciences
University of the South Pacific
