Both legality and legitimacy, etymologically speaking, are in the environment of the law, in accordance with the legal mandate. In political science, in addition, the concept refers to the ability of a power to be obeyed or to exercise its action without having to resort to coercion, the threat of force, which presupposes a majority social acceptance of what it will do. and his authority. The ideal, therefore, is that the laws have both qualities: legality and legitimacy, so they will be observed by the majority of citizens, who will see in them something acceptable and respectable, without the need to apply force, except for exceptions that surely would be. .
However, when the predominant theory is iuspositivism or legal positivism, law and morality tend to be unfolded, and the norm does not necessarily pass these two filters, which correspond – in a certain way – to the first mentioned. I make it easy for you: legal positivism states that the law is a set of norms dictated —by state legislators— through a formally valid procedure, with the intention or will to subject human behavior to disciplinary order by observing those norms. The law is made and followed, regardless of its moral value or social acceptance, which usually coincide. Thus, legitimacy is reduced or disappears and the letter of the norm — lacking in spirit — predominates in the interpretation of the facts. Does that sound familiar?
Prohibition is a good example of a rule not accepted, and therefore continuously broken with the acquiescence of almost everyone.
Prohibition is a good example of a rule not accepted, and therefore continuously broken with the acquiescence of almost everyone. Another example is observed in the current debate on the election of a magistrate to the CC, where conceptual divorce is also appreciated. The rules set the conditions, but socially we want to do something else. We ask the powers that must appoint magistrates to apply filters or establish processes that we would like to appear as requirements (legitimacy), but that are not contemplated in the regulations (legality). The immediate consequence is frustration and citizen rejection of what is not done, although the power complies with what the law establishes. One more can be seen in the recent harassment of a minor. Socially condemned and rejected – as it cannot be otherwise – many voices were raised for the alleged aggressor to be condemned (legitimacy). However, the crime of harassment (legality) is not typified in the Penal Code and, again, legitimacy collides – in this case – with the absence of legality. There is no specific criminal type that can be applied to him, other than looking for a way to adjust his conduct to existing crimes, with the risk that the judge will not appreciate such relationship and declare him innocent. We continue to confront « being » and « should be », but we do not take the necessary steps to make them coincide, and we get frustrated.
There is no other way than to change the system that does not work, to legislate on what we socially agree on and to stop fighting norms written without legitimacy or not even existing. We get used to living in a « No Rule of Law », in which the viscerality and the heat of the moment prevail and we intend to adapt the law to our interests instead of seriously debating the pertinent modifications, and reflecting them in writing in the corresponding codes. We have become accustomed to accommodating the rules to our needs, and we continually confront reality for wanting to do things the way we would like (legitimacy), forgetting that the legal ends up being imposed by our constant passivity to real change.