The political scientist Chris Thornhill (2008), drawing on Luhmann’s work, argues that modern states gained legitimacy by limiting their own reach to what they could realistically control. The 18th-century state began by separating from the church, the press, etc. By putting civil rights into constitutions, the framers were not acting out a sense of generosity; they were protecting the functional autonomy of the political system. The framers knew that the state could not realistically control personal speech, religious practice, the press, sexual relations, family life–and to attempt to do so would imperil the state. In other words, contrary to popular belief, it’s not that “the people” put limits of the power of the state; the state put limits on itself to protect its own autopoiesis.
It’s important to understand that political legitimacy cannot be granted from outside the system. “The people” cannot grant or withhold legitimacy. To speak of a “government of the people, by the people, for the people” or to speak of a “People’s Republic” is an act of rhetorical framing and nothing more.
The more states attempt to control or shape functionally autonomous systems–the economy, mass media, art, education, science, sexual practices or procreation decisions, the more the political system puts itself at risk. It gets so busy monitoring society that it cannot focus on making important decisions on issues of general concern, such as responding to a massive hurricane and flood in New Orleans in 2005.
In China, the post-1978 market reforms led by Deng Xiaoping–“Reform & Opening up”— may be seen in this light. Reducing state control over the economy led to renewed popular support for the PRC, as well as great economic growth and wealth creation (along with air pollution, etc). However, this is not a matter “the people” granting the PRC political legitimacy.
According to Luhmann (Political Theory in the Welfare State) political legitimacy is a “passé theme” theme whose roots lie in Middle Ages, when legitimacy was paired with participation (220). The people, on this view, will feel that the state is legitimate if they are allowed to participate. But if more participants are included in the government, that will just produce more discussion over decisions that need to be made–or more committees and subcommittees, just like in a university.
The high point of concern over political participation was 1968. But the problem, from a system theory perspective, is that individual people, as flesh-and-blood beings, cannot participate in society. As Luhmann puts it,
The old sense of participation means nothing more than what the word says: to be a part of the whole. But how can individuals with bodies and souls, with organisms and consciousness, be or become part of society? In past society individuality was conferred through inclusion, i.e., through social relations. One was an individual only among acquaintances and friends, only as a member of a household, family or stratum. . . . To the extent that modern society developed its own structures, this idea has been abandoned. . . . Modern society is arranged primarily into function systems for the economy, politics, religion, education etc. This excludes distributing individuals throughout these subsystems in such as way that every one of them belongs to one and only one of these subsystems. Instead, everyone has to maintain access to all functions. . . . Accordingly, the inclusion of the concrete, bodily individual within the whole of society cannot occur within the society differentiated into specific function systems (221-22)
It’s important to understand that Luhmann is not saying that it’s impossible for individuals to participate in the state because they have been unfairly excluded by elites or lobbyists or something. There is no conspiracy of the elites to prevent individual participation in politics. Rather, the individual, whatever the social class, cannot ever participate in any social system. The flesh-and-blood human being must be excluded because only communication is included in social systems and a human being is not communication. Persons are included as topics of communication, but living human beings are not.
But this need not be a depressing thought because this operational exclusion of the individual human means a person is free to engage in communication or walk away. If a human being were part of the system of law or science, for example, she could never leave that system, and it’s not an option to split her body or mind between two or more functional systems.
In other words, in an “enlightened society,” the individual person should have access to the legal system, the educational system, the healthcare system, etc., but as a human being she cannot participate directly in any of these systems; that is to say, she cannot be a part of these systems because a system is not a whole consisting of parts.
What the person says can be incorporated into a communication/social system, but the person her/himself cannot. The catch is, though, that once we say something and it’s understood or misunderstood by someone or some system, we lose control of it. It enters the social system and doesn’t need the speaker anymore.
As for political legitimacy, it’s really about popular support. Governments seek popular support, but that’s not the same as legitimacy.
After the progressive limitation of state control, the 20th century saw a kind of reversal as politics spread their tentacles deeper into society, and the welfare state developed–that is to say, we have seen the transition from constitutional state to welfare state. As Luhmann argues,
As political evolution moves on, the state formula moves from constitutional state to welfare state.
This does not mean that the state loses its constitution. . . . But it means that new problems arise which cannot be solved by the legal forms of the constitution. (Essays on Self-Reflection, 170)