LEGITIMACY. - It is, in general, conformity with the nature of things, with law, with the law.
I. CONCEPT
The term legitimate (from which the abstract l. derives) has a very broad meaning: that which is according to the law, established by the laws, just, true, equitable, fitting; something more precise and more determinate than mere legality, which can remain external, apparent, whereas l. is an intimate quality that clothes and pervades what is in conformity with the law, with justice, with reason, with established norms: conformity to the universal law of justice which imposes, sanctions, coordinates, regulates relations among men.
The term is therefore used in the most varied and complex meanings, in the converging effort to render or indicate the relationship between an act, a fact, a measure and the established law. Thus the legitimate portion is the hereditary share that, by provision of the law, belongs to each child or his descendants and to the surviving spouse, independently of the liberality of the deceased or of any testamentary dispositions of his. Legitimate age is the age upon reaching which the law attaches or recognizes the capacity to perform a determined act, to carry out a determined juridical transaction, such as the celebration of marriage, the administration of one's own property, religious profession, etc. A legitimate pact or contract is one recognized and protected by the law. Also called legitimate are the penalty inflicted and served according to the law, the guardianship or curatorship assigned by the law to wards and to incapacitated persons and interdicted persons, marriage actually celebrated and governed by the law, the procedural action granted by the law and exercised according to the law, defense, etc. L., then, in a general sense, requires that an act, a juridical fact, an administrative measure have from the law the force to produce determined effects that the active subject proposes. Extensively, it indicates the right of a person or dynasty to reign over a constituted State.
The three principal aspects of l. come into consideration in relation to family rights, to procedural law and to administrative acts, in regard to which one properly speaks of the judgment or review of l.
II. LEGITIMACY BY NATALI
As regards family rights, legitimacy is the condition of offspring born during marriage (v. PROLE).
III. PROCEDURAL LEGITIMACY
In procedural law, legitimacy or legitimation is the precondition for being able to stand in judgment (v. LEGITTIMAZIONE AGLI ATTI GIURIDICI).
IV. JUDICIAL REVIEW OF LEGITIMACY OF ADMINISTRATIVE ACTS AND MEASURES
In relation to administrative acts and measures, legitimacy is the condition, opposed to illegitimacy, which an administrative act or measure enjoys, with the effect of full validity, when it is not vitiated by incompetence, misuse of power, or violation of law.
a) For canon law the question is very complex and not yet settled. It is certain, however, that the ordinary judge cannot rule on the administrative acts of the local Ordinaries, whose competence is reserved to the Roman Sacred Congregations, always by administrative procedure (cf. can. 1601 and the response of the Pontifical Commission for the Interpretation of the CIC, 22 May 1923). In fact, no tribunal can judge the advisability or expediency of an administrative act or measure, or the necessity in which the public authority may find itself, even of limiting, in the general interest, the exercise of private rights.
b) By virtue of art. 5 of the law of 20 March 1865, no. 2248, annex E, the ordinary judiciary, in Italy, has only the review of legitimacy over administrative acts, which, within the limits of its specific competence, are referred to its examination; that is to say, it can inquire whether and in what sense the administrative act or measure conforms to the laws, denying consequently, in relation to the case submitted to it, its application if the act appears illegitimate, that is, nonexistent or null. The administrative act or measure is nonexistent when there is lacking in it an element necessary to its formal existence, such as a manifestation of will proceeding from a competent administrative organ, the determined substantial form, and the like; it is null, on the other hand, for defects inherent in the capacity of the subject who issues it, e.g., lack of power, incompetence (which could degenerate into abuse or usurpation of power), lack of personal capacity by reason of age or psychic or juridical conditions, in consequence of specific legal provisions; or also for defects of form, which, although they do not harm the substance of the determined act, nevertheless induce an invalidity, consequent, e.g., upon a notable discrepancy between the administrative will and the will of the official to whom the act or measure is due, whether this depends on malice or is due to error, fraud or violence; upon a lack of proportionate cause, and the like.
In the case that the defect of illegitimacy does not depend on violation of a law, or on false interpretations or applications of it, or on error of fact, the judicial authority cannot review administrative acts and measures. And the specific competence, in the case, is subject to well precise and determined limitations, e.g., that the illegitimacy of the administrative act or measure has injured subjective rights, that the judge's inquiry stops at the fact and does not extend to the merits, to discretionary powers of the administration in a given sphere, etc. Such limitations do not exist or can be modified when the review of legitimacy is made not by the ordinary magistrate, but by the Council of State or by special jurisdictions, from whose competence every judgment of merits in consequence of the exercise of a discretionary power remains in any case excluded.