Towards Non-essentialism – Tracking Rival Views of Legitimacy as a Right to Rule

It is common in the literature to claim that legitimacy is the right to rule and that, accordingly, Hohfeldian rights analysis can be used to understand the concept. However, we argue that authors in the legitimacy literature have not generally realised the full potential of Hohfeldian analysis. We discuss extant approaches in the literature that conceptually identify legitimacy with one particular Hohfeldian incident, or, more rarely, a determinate set of incidents. Against these views, and building on parallel debates in property theory, we suggest that Hohfeldian analysis pushes one towards the claim that legitimacy possesses no determinate essence. We provide a rationale for this novel view and disarm a series of objections.