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1 National University Odessa Law Academy, Ukraine

DOI: https://doi.org/10.30525/2256-0742/2022-8-3-86-91

DISCIPLINARY PERSPECTIVE OF THE THEORETICAL  
AND LEGAL PROFILE OF THE LEGITIMACY OF LAW

Olga Ivanchenko1

Abstract. The subject of the study is the definition of the disciplinary perspective of the theoretical-legal  
profile of the legitimacy of law. Methodology. The methodological basis of the study are methods of  
induction and deduction, dialectical-materialistic method, the method of analysis and synthesis, the historical 
method, which allowed to objectively understand the content and essence of the issues under study.  
The aim of the article is to investigate the theoretical concept of legitimacy of law in the context of its 
correlation with the concept of legitimacy in the modern state of law. The results of the study showed that the 
disciplinary perspective of the theoretical-legal profile of the legitimacy of law is defined. Namely: proposed a 
modern theoretical and philosophical genesis of the legal understanding of the legitimacy of law and legality; 
investigated the relationship of legality, legitimacy of law and legal consciousness in the theory of state  
and law; identified conceptual directions in the study of the phenomenon of legitimacy of law. Conclusion. 
Legitimacy is both a constructive and a destructive concept. In its strict form, this concept characterizes 
a certain moment of attitude toward the law and the problems of its effective functioning. However, in 
philosophy or legal theory, for example, legitimation should thus mean communicating a legitimate-legal 
character to the law. It appears that this concept, which has a purely legal etymology – legitimate, excludes 
from the law its value essence, shifting the center of gravity to the practical assimilation of the law in the 
public and individual consciousness. This gives rise to a rather peculiar construction. Law can be anything, 
the main thing is that it corresponds to a formal procedure. The right thus legitimized enters a new stage –  
assimilation and acceptance in the public and individual consciousness. If it is not accepted voluntarily,  
it does not cease to be a right, but suffers from a lack of legitimacy. In essence, legitimacy captures two 
essential points: the first is the orientation toward dialogue with society and with each of its members 
individually, that is, the final sanction in the minds of the people or its majority; but, on the other hand, it is  
not the law itself that possesses some internal attribute of supreme legitimacy, but only its collective 
psychological perception and justification. In other words, the central issue in this approach is, on the one  
hand, the role of individual consciousness and, on the other hand, it creates a very wide scope for  
technological, in the sociological and political sense, influence on collective consciousness.

Key words: legitimacy of law, legitimation, legality, theory of law, legal nature, logical-conceptual construction, 
socio-practical construction, legal norms.

JEL Classification: K10, K39

1. Introduction
Research interest in the concept of legality  

traditionally increases during periods of radical 
transformations and revolutions, when society seeks to 
free itself from the fetters that hinder its development, 
and the idea of law begins to experience the influence 
of the political factor. Under these conditions, 
society begins to actively appeal to the idea of "pure 
law," capable of establishing true legal principles in 
society. These trends can also be observed in modern  

Ukraine during the formation of civil society and the 
rule of law.

The study of theoretical problems of legality and 
legitimacy of law is repeatedly updated and complicated 
by the fact that for domestic legal science is charac-
terized by a purely positivist dogmatic approach 
to the consideration of the problems of legality.  
Traditionally, the legality is considered solely 
from the external, formal side and is interpreted as 
a strict compliance and enforcement of the law. The 

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internal, substantive aspect of legality is left out of the  
brackets of the above formula, which leads to the use 
of legality as an instrument of the will of the state, 
expressed in the law.

The vulgarization of the category of legality in 
legal science is vividly illustrated by the unjustified 
narrowing of its content exclusively to "prohibitive- 
prescriptive norms". New approaches to law, the 
modern "transition from the logic of equality to 
the logic of freedom" urgently require a broader  
perspective on the rule of law. Once basic 
inalienable human rights are recognized, the concept  
of "mere legality " is no longer sufficient. In this  
regard, the rule of law, including vast layers of  
normative acts, is primarily designed to "speak  
of rights," oriented toward the authorization and 
perception (acceptance) of laws by the population 
(legitimacy) (Berger, 1998).

The relevance of the problem from a practical  
point of view is due to a combination of objective  
and subjective prerequisites.

In Ukraine, which turned into a "reform state" at 
the end of the 20th century, strengthening the rule of 
law has become one of the main directions of further 
development. However, formal legality, legality not 
filled with legal content, is not able to serve as a reliable 
mechanism for limiting state power and a means 
of protecting human rights. It is necessary that, not 
only in name but also in content, the laws and the 
lawfulness corresponding to them should express the 
ideas of a state governed by the rule of law and not  
violate legal principles and requirements (Primova, 
2013).

Legal nihilism, conflicts of laws, the development 
of "decree" law, difficulties in law enforcement, 
the imperfection of judicial activity actualize the 
development of the problem of legality as a "tool" for 
the practical implementation of the legal principles  
that form the rule of law state.

Primitivization of the construction of legality  
actually deprives Ukrainian citizens of the right to 
demand change or cancellation of "infringing" laws  
that restrict or violate human rights. The formal  
concept of legality contributes to the preservation in 
Ukrainian society of the stereotype of a "culture of 
complaint," according to which any attempt to appeal  
to a court is seen as something useless.

A simplistic understanding of the rule of law within 
a dogmatic positivist framework greatly complicates  
the administration of justice. Faced with an "infringing" 
law when deciding a particular case, judges have no 
effective leverage to overturn it, resulting in a formal 
"infringing" decision.

Thus, from a theoretical and practical point of view, 
the problem of legitimacy is of great importance and 
relevance.

2. Theoretical and philosophical genesis 
 of the legal understanding  
of legitimacy and legality

The problem of legality is one of the cross-cutting 
themes for the entire history of legal thought and 
political and legal practice, over the explanation, 
understanding, clarification and development of which 
many generations of philosophers and lawyers have 
worked. At its core, it is related to the awareness and 
realization in the joint life of people of the beginning 
and the requirement of order, perceived as a necessary 
component of human sociality, his social essence.  
At the same time, at different stages of historical 
development the problem of legality has acquired 
a variety of interpretations, due primarily to the 
understanding of the original principle of order in the 
framework of mythological, religious, philosophical, 
political-legal, moral, everyday and other ideas  
about the rules of relations between people.

The diversity of approaches to the understanding  
of law in the modern world, including various 
disciplinary perspectives of philosophical-legal, 
theoretical-legal, socio-legal and psychological-legal 
profiles, has significantly complicated the logical-
conceptual and socio-practical construction of legality. 
Thus, traditionally in the philosophy of law the 
requirement of legality appears as legitimate justice 
or in the context of the distinction between legality 
and morality. However, in the modern perception  
the transfer of the center of gravity on individual,  
often very remote, manifestations of this essence, 
turning the latter into something distinct and 
independent, substitutes the problem of the essence of 
legality (Kovalchuk, 2013). For example, the attempt  
to distinguish in law as a text and as a fact,  
characteristic of some variants of legal realism,  
revealed and illuminated important facets of the 
problematics of the concept of law and its practical 
empirical action. At the same time, however, it limited 
the problem of the essence of law to its original  
setting and significantly influenced the understanding  
of legitimacy. On the one hand, legitimacy in the  
structure of the formula "law as text" is limited to 
the analytical or hermeneutical technique, and on 
the other hand, the empirical component – "law as 
fact" reproduces only the factual side of legitimacy, 
which removes the problem of the proper, in this case 
legitimacy as requirement. In sociological approaches 
to law, especially in connection with the works of 
M. Weber, the distinction between legality-legality and 
legality-legitimacy prevails. In the legal and political 
science literature, the works of K. Schmitt are of  
similar importance (Weber, 1998). 

The new trend in Western legal thought, dubbed 
"new legal realism," typically articulates an attitude of 
radical pragmatism about the irrelevance of the rule of 



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law (Maksimov, 2010). In the context of this tendency, 
legality is not proper or even empirically uniform, but 
only factual, characterized only through descriptive 
techniques by pointing to the factors that influenced 
legally significant behavior in a particular case, i.e.,  
the extremity of relativism. In other words, if any 
solution is just, only in its own way, the problem of 
legitimacy is completely removed; in the context 
of such a paradigm, there is not and cannot be any 
place for the demand for legitimacy or the rule of law.  
Since there is no general or unified scale of justice, 
or at least no general requirement of legality, there 
can accordingly be no question that law means 
some universal criterion, even if reflected through 
the generalization of the sociocultural experience of 
mankind. That is, the actual behavior of the judge or 
other official relevant in the relevant paradigm, far  
from even a decision, is a random and disordered 
expression of some uniquely predictable empirical 
substratum of law (Yuriychuk, 2010).

Today, the problem of legitimacy is often translated 
into a discussion of the problem of legitimacy, which 
is presented as the highest legality or legitimacy. 
It, meaning legitimacy, should, as it were, precede 
legality. At the same time, the root of these words is  
the same – "law", legality and legitimacy create 
confusion in the modern legal lexicon. The concept 
of legality, which is actively used in legal science,  
in its main development has a socio-political nature  
and in relation to the legality, as a legal concept,  
forms a legal, socio-political image of legality 
(Nevidomiy, 2011).

D. Zadykhaylo outlined the problem of  
"legitimation of legal norms", which he considered 
as an essential part of the disclosure of the problems  
of the social foundations of law and which, in his  
opinion, has not received due attention in legal 
science. According to D. Zadykhaylo, the problem of 
the legitimacy of legal norms becomes more relevant 
in connection with the implementation of so-called 
"regulatory strategies". The essence of the latter lies in 
the fact that they, as a program "guided by the subjects  
of lawmaking, wishing to achieve with the help of  
law the main results of social development," "provide 
a more or less smooth transition of facts from one of 
their states to another, ... proceed to the breakthrough 
of reality." Such transformative intentions and the 
programs that embody them have a legitimizing 
character, that is, they contain as a matter of course 
"something substantiated, ontologically and ethically 
justified, corresponding to the meanings of politics,  
law and morality." D. Zadykhaylo adhered to the 
distinction between legality and legitimacy, widely 
known in foreign legal literature. Legality is, according 
to D. Zadykhaylo, "a category that expresses the 
compliance of any act, action, event with the law and its 
norms. It refers entirely to the legal sphere, expressed in 

a well-known legal concept of legality." "Legitimacy is 
a broader category that goes beyond jurisprudence; it 
allows certain acts, actions, and events to be recognized 
as justified from the standpoint of the proper... To 
recognize something as legitimate, i.e., to recognize 
the conformity of a certain object with higher laws 
and higher principles, social, moral and legal values."  
Hence the legitimacy of the legal norm (the law itself ), 
which states that the latter must be moral, expedient, 
widely endorsed in society (Zadykhaylo, 2007).

3. Correlation of legality, legitimacy  
of law and legal consciousness in the theory  
of state and law

Problems of legality and legal consciousness were 
considered in the works of S. Zykova. According to 
S. Zykova, legality is "a complex and multifaceted 
phenomenon, the essence of which can be revealed 
through a whole system of definitions, through the 
analysis of various aspects of its social purpose."  
The explanation of the essence of legitimacy from  
the position of S. Zykova should take into account or 
focus on four essential aspects: 
– firstly, legality is understood as "a special method  
of state management of society”; 
– secondly, as "a certain regime established as a result  
of the application of this method"; 
– thirdly, as a "principle of legal consciousness";
– and, finally, fourthly, as a "legal value" (Zykova, 2013).

Legality as a method of public administration of 
society is the organization of social relations through 
the publication and strict, steady execution of a system 
of legal norms, expressing the will of the people and 
aimed at achieving the goals of social construction.

Legal consciousness contains an understanding  
of the objective necessity of lawfulness in society, 
scientifically validated views and ideas about the 
ways and means of establishing lawfulness, about 
its guarantees. It acts as a necessary ideological and  
socio-psychological precondition for the creation of 
legal norms and institutions. Regulatory action of 
law, the law, its impact on the development of social  
relations is objectified only through the consciousness 
and will of people. In this sense, legal consciousness 
gives life to the legal system, as if it sets in motion the 
entire system of legal norms. The clear functioning 
of the system of legal regulation creates in society  
a certain legal regime – the regime of legality.  
Legality acts as an objective result of all elements of 
the system of legal regulation: legal consciousness, 
the system of legal norms and various ways of their 
implementation. Hence the organic connection 
between legal consciousness and legality. Legality 
is the result of purposeful activity of millions 
of workers, flowing in legal forms, based on the 
creation and implemen-tation of state-legal norms  
(Novachenko, 2016).



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The interpretation of legality proposed by  

S. Zykova's interpretation of legality and its correlation 
with legal consciousness reveals a broad set of 
characteristics and properties of legality as a method, 
regime, principle and value. At the same time, it seems 
that S. Zykova's in-depth analysis can be supplemented 
(Zykova, 2013). First, as a method and regime,  
legality refers entirely to the activities of official 
bodies and officials; as a principle of consciousness 
and value, it can refer both to officials and bodies and 
to individuals. In this totality, legality does not act as 
a general (universal) socio-practical or socio-political 
requirement for all members of society, i.e. as a certain 
social task that logically and practically follows from 
the consciousness of the social (socially necessary) 
value of law. The fact is that the recognition of legality 
as a principle or value in the mainstream of modern 
social theory, and any legal theory is also social, does 
not mean that they automatically, by virtue of some 
internal regularity, become an integral element of 
practical activity and social action. In the sociological 
context, it is possible to say that in the conditions 
of modern society, the requirement of legality is  
imposed mainly on officials, which in itself is certainly 
correct, but not on society itself. Consequently, 
according to the author, there is a stark gap  
between official legality and "living" (actual, real) 
legality, which for various reasons is not recognized  
and not used by society as a whole as a necessary guide  
in practical activity and coexistence. In addition,  
officials, who are also part of modern society, reflect 
the general views and attitudes dominant in society.  
At the same time, legitimacy should not be understood 
as "working" solely for the good of the state and  
the general social interest. On the contrary, it should  
be recognized and realized as a socially necessary 
condition for the stability and sustainability  
of human sociality, the existence and development of 
society (Matveev, 2014).

The presence of a legitimate norm is a prerequisite  
of legality, a condition of law and order. Legitimization 
of new legal norms consists in the voluntary  
acceptance by people of these norms for execution,  
in the formation of the obligation to obey the law.

Y. Obertov held to an understanding of legitimation 
derived from social-eudemonic ideas, that law and 
law should serve society as a whole, not individual 
groups. In doing so, he proceeded from the fact that 
for each participant of legal communication the 
problem of legitimacy of the norm is put separately,  
only the individual himself intellectually and 
emotionally accepts it as due, is aware of all the 
grounds and motives of his own duty formed by him  
(Obertov, 2010).

In Y. Obertov's understanding, the problem of 
legitimacy is reconstructed as a special expedient 
technology of successful application in society of 

a normative strategy – a guiding program developed 
by a legislator and implemented by state power in 
accordance with the best socio-cultural achievements 
of mankind, conditioned by conditions of a particular 
historical period, for improving the quality of life, 
social and individual existence (Obertov, 2010). In 
other words, legitimation is the setting for effective 
legal policy. A necessary element of legitimation is 
the moment of feedback, the voluntary acceptance by 
society of the norms established by the state as due, as 
an internal duty. In this dialogue of social structures  
and actors involved in the development and adoption 
of legal norms, and every individual as a social being,  
the legitimacy of legal norms is realized.

4. Conceptual trends in the study  
of the phenomenon of legitimacy of law

The definition of legitimacy as an interrelated  
process, on the one hand, of the legislator, and 
on the other hand, of each individual, is a crucial  
characteristic of the effective functioning of law. 
However, it seems that the concept of legitimacy  
of legal norms needs certain clarifications.

First, the legal norm in this conception is neither 
legitimate nor illegitimate. It acquires this quality 
only in its "process of life," its two-way path. Thus,  
legitimacy is a right in life. If a right is voluntarily 
acquired and accepted by its addressees, then it 
can become legitimate. This is already a moment of  
collective psychology or a socio-legal characteristic  
of the norm. At the same time, since acceptance 
of a norm, i.e., its legitimization, is an individually 
conditioned process that depends on the totality 
of an individual's cultural, ideological and other 
attitudes, both psychological and sociological factors 
become significant. In A. Mishchenko's interpretation, 
legitimation, quite in the spirit of Weber's sociology 
of law, has the character of a purposeful action, both  
at the level of the original instance, the legislator,  
and at the level of the addressee of the norms 
(Mishchenko, 2010). At the same time, the requirements 
("higher principles") to be met by a legitimizing  
regulatory strategy remain completely unclear. And 
besides, the individual, as an indispensable participant 
in legitimation, is endowed by the author with a set 
of important, yet very high requirements that imply 
a completely conscious choice of the imperative  
norm as a way of proper behavior, that is, the question  
is not of the individual as such, but of a highly  
developed and highly moral individual. 

Similar points can be found in the legal theory of 
G. Hart, who proceeded from the understanding 
of a "healthy legal psyche" and formulated in this 
connection the task of forming, on the one hand, 
the politics of law as a new disciplinary form of legal  
science, and on the other hand, legal pedagogy,  



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which should contribute to the development of the 
individual (Hart, 2005).

Second, on the one hand, a legal norm as part of 
a regulatory strategy must meet a number of high 
requirements, and on the other hand, its legitimacy is 
conditioned on its recognition as such by members of 
society. Hence, several questions immediately arise: 
how should the situation be assessed when a legal 
norm meets the highest standards of its development, 
moral and legal criteria, i.e., is it a kind of work of art, 
but practically not applied, not recognized by society  
as a legal norm due to excessive difficulty of 
understanding or non-compliance with the needs  
of the historical moment, and so forth? Or, in the 
absence of a formulated norm, is it actually recognized 
in society as a right and applied as a proper rule in  
social relations?

Third, the moment of recognition is often already 
contained in the concept of law itself, especially when 
it comes to the types of legal theories that are based 
on the use of psychological arguments. For example, 
O. Bandura wrote: "Law is a mental factor of social 
life, and it acts mentally. Its action consists, firstly, 
in excitation or suppression of motives for various  
actions and abstinence (motivational or incentive  
action of law), secondly, in strengthening and 
development of some inclinations and features of 
human character, in weakening or eradication of 
others, in general, in education of national mentality  
in accordance with the nature and content of the 
direction of the existing legal norms (pedagogical  
action of law)" (Bandura, 2000).

Another authoritative jurist, A. Baumeister, wrote  
that law is that which people "living together in 
a community mutually recognize as the norm or rule of 
their life together" (Baumeister, 1998).

Y. Kalyuzhnaya wrote: "Law is rooted in  
conviction. Its provisions are, by their very nature, 
statements of reason about the limitations of 
the will that are necessary for a just order of life"  
(Kalyuzhnaya, 2012).

These examples show that, for representatives  
of the psychological school of law, the moment of 
recognition or belief is already immanently included  
in the very notion of law. Therefore, from this  
perspective, only that which is recognized as such 
can be considered a right. Moreover, in this context, 
the notion of legitimacy loses its meaning altogether. 
The formula "legitimizing the right" or "legitimation 
of the right" would mean, in terms of a psychological 
approach to law, justifying as a right what is already 
a right, regardless of any external circumstances. 
Various sociological versions of the understanding of 
law often do the same (Kelsen, 2004). They see law as 
a social fact or as a socially conditioned phenomenon. 
Moreover, in this sense, the legal norm emanating 
from the legislator is only a reflection, more or less 

successful, of what is recognized or established as 
law in society. In other words, legislative norms are 
only a logical and conceptual form of reflection or  
expression of law. In this case, the formula "legitimation 
of law" is also overloaded and contradictory (Kozlov, 
2014). In other words, in sociological versions of 
interpreting law, law either exists or it does not, it is 
born in society. It is possible to speak of the recognition 
of law or of its expression in legal concepts, legislative 
norms, judicial practice, but law is already present 
before its normative formulation and objectification,  
as an established order or an expedient way of  
resolving conflicts, etc.

In addition, the voluntarily formed obligation to 
obey the norm represents the morality of law, of  
which O. Skakun wrote (Skakun, 2008). Morality 
as a valuable moral and spiritual characteristic of 
humankind means recognizing the value of human 
beings as rational beings.

5. Conclusions
Legitimacy is both a constructive and a destructive 

concept. In its strict form, this concept characterizes 
a certain moment of attitude toward the law and 
the problem of its effective operation. However, in 
philosophy or legal theory, for example, legitimation 
must thus mean communicating to the law a  
legitimate-legal character. It appears that this concept, 
which has a purely legal etymology – legitimate,  
excludes from the law its value essence, shifting the  
center of gravity to the practical assimilation of the  
law in the public and individual consciousness.  
This gives rise to a rather peculiar construction. Law 
can be anything, the main thing is that it corresponds 
to a formal procedure. The right thus legitimized, 
that is, formally legitimized, enters a new stage 
of assimilation and acceptance in the public and  
individual consciousness. If it is not accepted  
voluntarily, it does not cease to be a right, but suffers 
from a lack of legitimacy.

In essence, legitimacy captures two essential  
points: the first is the orientation toward dialogue with 
society and with each of its members individually,  
i. e., the final sanction in the minds of the people 
or its majority; but, on the other hand, it is not the 
law itself that possesses some intrinsic attribute of 
supreme legitimacy, only its collective psychological 
perception and justification. In other words, the central 
issue in this approach is, on the one hand, the role of  
individual consciousness and, on the other hand, it 
creates a very wide scope for technological, in the 
sociological and political sense, influence on collective 
consciousness.

At the same time, the question remains open, for 
example, how a right that is not expressed in formal  
legal norms (customary law or de facto law, "living" 



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or special psychological experiences, imperative-
attributive emotions) should be assessed. It has  
gained recognition in society, but it has not become 
part of the regulatory strategy or part of the  
rulemaking. Obviously, it must be recognized as 
illegitimate. Moreover, the problem of legitimacy 
devalues the very notion of law, which is no more 
than a formal requirement. What counts is not 
the quality of the law or its legal nature, but the 
conviction of the addressees, for which there is 
obviously a wide range of possibilities, especially in 
the modern era of high technology. In the context of 
legitimacy, the role of the concept of law as a whole  
also remains completely unclear. That is, some 
empty form of law is recognized, which must be  
legitimized – to acquire content, but only that which 
will be reflected and voluntarily assimilated in the  

mind of the addressee. However, this interpretation 
is only appropriate in strictly defined versions of  
legal theories.

Thus, a right can be legitimate but illegal. On the 
contrary, it may be legal but illegitimate. However, 
at the same time, in both cases this does not affect 
the essence of the right. Law in this paradigm is,  
as a rule, a set of norms, imperative dictates or logical-
conceptual constructions in the form of judgments 
about the proper, but in any case, in this paradigm  
for legal science as a central question is offered not  
about the essence of law, but, first, about the formal 
technology (procedure) of its development and 
adoption, and second, about the degree of its 
justification in the minds of people. At the same time, 
as a rule, legitimacy is never complete, but is implied 
a priori as a graded value, more or less legitimate.

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Received on: 29th of July, 2022
Accepted on: 2th of September, 2022

Published on: 30th of September, 2022