LEGITIMACY. — In general, it is conformity to the nature of things, to right, to law.
I. CONCEPT
The term *legitimate* (from which the abstract *legitimacy* is derived) has a very broad meaning: that which is according to law, constituted by laws, just, true, equitable, fitting; something more precise and determinate than mere legality, which may remain external, apparent, whereas legitimacy is an intrinsic quality that invests and permeates what is in conformity with law, justice, reason, and established norms: conformity to the universal law of justice that imposes, sanctions, coordinates, and regulates relations among men.The term is therefore used in the most varied and complex meanings, in the convergent effort to render or indicate the relationship between an act, fact, or measure and established law. Thus, the *legitimate portion* is the hereditary share that, by provision of law, belongs to each child or their descendants and to the surviving spouse, independently of the liberality of the deceased or any testamentary dispositions. The *legitimate age* is the age at which the law attaches or recognizes the capacity to perform a certain act, to undertake a certain legal transaction, such as the celebration of marriage, the administration of one’s own goods, religious profession, etc. A *legitimate pact* or contract is one recognized and protected by law. The term is also applied to the penalty inflicted and served according to law, to the guardianship or curatorship assigned by law to minors and incapacitated or interdicted persons, to a marriage actually celebrated and regulated by law, to the legal action granted by law and exercised in accordance with it, to defense, etc. Legitimacy, therefore, in a general sense, requires that an act, a legal fact, or an administrative measure derive from the law the force to produce the specific effects that the active subject intends. By extension, it also denotes the right of a person or dynasty to reign over a constituted state.
The principal aspects of legitimacy come into consideration in relation to family rights, procedural law, and administrative acts, with regard to which we speak of the judgment or scrutiny of legitimacy.
II. LEGITIMACY OF BIRTH
With regard to family rights, legitimacy is the condition of offspring born within marriage (*V. PROLE*).III. PROCEDURAL LEGITIMACY
In procedural law, *legitimation* is the prerequisite for standing in judgment (*V. LEGITTIMAZIONE AGLI ATTI GIURIDICI*).IV. SCRUTINY OF THE LEGITIMACY OF ACTS AND ADMINISTRATIVE MEASURES
With regard to administrative acts and measures, legitimacy is the condition, opposed to illegitimacy, enjoyed by an administrative act or measure with the effect of full validity, when it is not vitiated by incompetence, abuse of power, or violation of law.a) In canon law, the question is very complex and not yet definitively settled. It is certain, however, that the ordinary judge cannot pronounce upon the administrative acts of local Ordinaries, whose competence is reserved to the Roman Congregations always in an administrative capacity (cf. can. 1601 and the response of the Pontifical Commission for the Interpretation of the CIC, 22 May 1923). Indeed, no tribunal can judge the advisability or opportunity of an administrative act or measure, or the necessity in which public authority finds itself to limit, in the general interest, the exercise of private rights.
b) By virtue of Article 5 of the law of 20 March 1865, no. 2248, Annex E, in Italy the ordinary magistracy has only the scrutiny of legitimacy over administrative acts, which, within the limits of its specific competence, are submitted to its examination; that is to say, it can investigate whether and to what extent the administrative act or measure conforms to the laws, and consequently, in relation to the case before it, deny its application if the act appears illegitimate, i.e., non-existent or null. An administrative act or measure is non-existent when it lacks an essential element for its formal existence, such as a manifestation of will emanating from a competent administrative organ, the required substantial form, and the like; it is null, on the other hand, for defects inherent in the capacity of the subject issuing it, e.g., lack of power, incompetence (which could degenerate into abuse or usurpation of power), lack of personal capacity due to age or mental or legal conditions, as specified by particular legal provisions; or also for defects of form, which, although not impairing the substance of the act in question, nonetheless give rise, for example, to a notable discrepancy between the administrative will and the will of the official responsible for the act or measure, whether this arises from malice or is due to error, deceit, or violence; or to a lack of proportional causation, and the like.
If the defect of illegitimacy does not depend on a violation of law, or on false interpretations or applications of it, or on a factual error, the judicial authority cannot scrutinize administrative acts and measures. And the specific competence in such cases is subject to precise and determined limitations, e.g., that the illegitimacy of the administrative act or measure has violated subjective rights, that the judge’s inquiry is confined to the facts and does not extend to the merits, to the discretionary powers of the administration in a given sphere, etc. Such limitations do not apply, or may be modified, when the scrutiny of legitimacy is conducted not by the ordinary magistrate but by the Council of State or by special jurisdictions, from whose competence any judgment on the merits remains excluded by virtue of the exercise of discretionary power.
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