ABSTRACT
This chapter addresses several core questions. What is legitimacy, and how has it been understood? On what basis does the legitimacy of liberal-democratic state power, domination, lawfulness, and enforcement actually rest? The answer we give to these questions centers on the question of legitimacy: why ought I, or we, obey a state – and its laws and policies? Our answers to these questions have a fundamental effect on how we think about dissent when it involves a breach of the law, or when states decide to criminalize that dissent. The chapter uses the 1958 debate between H.L.A Hart and Lon Fuller about the Nazi ‘Grudge Informer’ case to highlight some of the central issues involved in the criminalization of dissent. The central issues raised by the case and the subsequent debate ask whether the fact that a state has enacted a law is enough to ensure that that law is legitimate or does it need to pass some other moral test? An examination of some key liberal legal theorists from Hobbes through Austin and Hart suggests that when we take into account Carl Schmitt’s critique of liberalism that we confront an intractable problem to do with the relationship between state sovereignty (or power) and legitimacy as this is understood by liberals; liberal-democratic states will privilege security over freedom and declare states of exception to do so.
