LEGITIMACY OF THE JUDICIARY LL. M. Gribnau IB 2 Legitimacy, so peculiarto legal(.) thinking, is as much phenomenon in the world as problem. Assstant professor of methodology of tax law and legal theory at Tilburg (JLM Grib
LEGITIMACY OF THE JUDICIARY J.L.M. Gribnau* I B 2 `Legitimacy, so peculiar to legal () thinking, * Assistant professor of methodology of tax law and legal theory at Tilburg (J.L.M.Gribnau@kub.nl). is as much phenomenon in the world as problem
GRIBNAU It is a fo Introduction Law is omnipresent in modern society and legal institutions have a major place in the structure of Westem societies. Law and legal process are increasing enormously Law seems to be a kind of replacement, a substitute for traditional authority. The same goes for the Netherlands there is a great deal of litigation. However, we should not exaggerate: we cannot say that a litigation explosion is taking place in the Netherlands 2 That does not alter the fact that the courts have to decide many cases, often with respect to immensely complex and interwoven problems Sometimes the legitimacy of a court decision is questioned because a decision in a(criminal) case runs contrary to public opinion, which, however, is often quite superficially infomed by the meda. Another problem is that legal procedures may take a long time, whereas the substance of individual consent to a process of decision-making, that may init ia lly attach to and legitimate outcomes, thins as the process expands in scope and lengthens in time. 3 Furthermore, the Supreme Court is requently criticized by the legal profession for not pay ing due respect to the Court's function of developing the law. In this way, we notice a difference between the authority and legitimacy attributed to the judiciary by citizens, on the one hand, and by jurists, on the other One cause of this difference may also be the fact that values shared by jurists may differ from those shared by non-jurists. Which one should be taken into account when judging the clam of objectiv ity?> However, these problems do not constitute a legitimation crisis of the judiciary The judicary fulfils a special role in the state under the rule of law. ' As the guarantor of justice, a fundamental value in a law-govermed State, it must enjoy public confidence if it is to be successful in carry ing out its duties. 6 This confidence cannot be based on the judiciary s power to decide conflicts alone. Authority means more than power, it means legitimate power. Therefore, the judiciary has to honour (legal) values and principles like consistency, coherence, legal certainty, predictability, and not the least justice and objectiv ity. Respect for the more genen J. Vining, From Newtons Sleep, Princeton: Princeton Uniersity Press 1995, p. 279 L M. Friedmann, The Republic of Choice. Law, Autority and Culture Harvard University ss: Cambridge Mass, 1994a(1990),p 17 A R Bloembergen, Ubi indicia deficint incipit bellum. Het beroep van de rechter in volgrpeide rechtsstaat, Amhem: Gouda Qunt 1995. According to E Blankenburg and F. Brunsma, Duth Legal Culture, Deventer: Kluwer 1991, p. 7, one of the reasons s that Dutch legal culture offers many alternative and pre-court conflict institutions. procedure(interim njunction proceeding or prov s onal relief) before the president of a dstrict court; see Blankenburg and Bruinsma 1991, P. 23 ff. f. J.M. Barendrecht, De Hoge Raad op de hei, Deventer: W.EJ. Tjeenk Willnk, 1998, and J B M. Vranken, Toeval of beed?, Nederlands uristenmblad, 75 (2000)no 1, P. I ff Benelux-Scandinauian Symposiumon Legal Theory, Oxford: Hart Publishing, 2002. 6. ECtHR 26 April 1995, Prager/Oberschlick v Austria, Series A, No 313, p. 18,$ 34
GRIBNAU 2 It is a force in the world.'** 1 Introduction Law is omnipresent in modern society and legal institutions have a major place in the structure of Western societies. Law and legal process are increasing enormously. `Law seems to be a kind of replacement, a substitute for traditional authority.'1 The same goes for the Netherlands: there is a great deal of litigation. However, we should not exaggerate: we cannot say that a litigation explosion is taking place in the Netherlands.2 That does not alter the fact that the courts have to decide many cases, often with respect to immensely complex and interwoven problems. Sometimes the legitimacy of a court decision is questioned because a decision in a (criminal) case runs contrary to public opinion, which, however, is often quite superficially informed by the media. Another problem is that legal procedures may take a long time, whereas the `substance of individual consent to a process of decision-making, that may initially attach to and legitimate outcomes, thins as the process expands in scope and lengthens in time.’3 Furthermore, the Supreme Court is frequently criticized by the legal profession for not paying due respect to the Court's function of developing the law.4 In this way, we notice a difference between the authority and legitimacy attributed to the judiciary by citizens, on the one hand, and by jurists, on the other. One cause of this difference may also be the fact that values shared by jurists may differ from those shared by non-jurists. Which one should be taken into account when judging the claim of objectivity?5 However, these problems do not constitute a legitimation crisis of the judiciary. The judiciary fulfils a special role in the state under the rule of law. `As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties.’6 This confidence cannot be based on the judiciary's power to decide conflicts alone. Authority means more than power; it means legitimate power. Therefore, the judiciary has to honour (legal) values and principles like consistency, coherence, legal certainty, predictability, and not the least justice and objectivity. Respect for the more general ** J. Vining, From Newton's Sleep, Princeton: Princeton University Press 1995, p. 279. 1. L.M. Friedmann, The Republic of Choice. Law, Authority and Culture, Harvard University Press: Cambridge Mass., 1994a (1990), p. 17. 2. A.R. Bloembergen, Ubi iudicia deficiunt incipit bellum. Het beroep van de rechter in onze volgroeide rechtsstaat, Arnhem: Gouda Quint 1995. According to E. Blankenburg and F. Bruinsma, Dutch Legal Culture, Deventer: Kluwer 1991, p. 7, one of the reasons is that Dutch legal culture offers many alternative and pre-court conflict institutions. 3. Vining 1995, p. 280. If urgent cases, a party can resort to a speedy civil or administrative procedure (interim injunction proceedings or provisional relief) before the president of a district court; see Blankenburg and Bruinsma 1991, p. 23 ff. 4. Cf. J.M. Barendrecht, De Hoge Raad op de hei, Deventer: W.E.J. Tjeenk Willink, 1998, and J.B.M. Vranken, `Toeval of beleid?', Nederlands Juristenblad, 75 (2000) no 1, p. 1 ff. 5. A. Peczenik , `Law and Politics’, in: L. Wintgens (ed.), Proceedings of the 4th Benelux-Scandinavian Symposium on Legal Theory, Oxford: Hart Publishing, 2002. 6. ECtHR 26 April 1995, Prager / Oberschlick v. Austria, Series A , No. 313, p. 18, § 34
LEGITIMACY OF THE JUDICIARY principles of proper administration of justice attributes to the legit macy of the judicary. These general principles of propera dministration of justice are part of the general principles of law. Therefore, the legitimacy of the judicary is closel connected to the legitimacy of the aw In the next sections, I will discuss the concept of legit macy and its relation to legal principles. I will use some recent Dutch theses to illustrate the importance and the use of principles for the legitimacy of aw in generaland for the legitimacy of the judiciary in particularand to add a Dutch touch to the intermational debate. However. I will start with some characteristics of the udiciary, followed by an analysis of the concepts of legality and legitimacy 2 Some characteristics of the judiciar The function of a court is to respond to a situation. Therefore, it has a passive nature Judges do not choose their own agenda. Furthemore, principal limitations derive from the way in which cases get to the courts and the way in which issues are framed and reasons adduced and from the provisions for effectuating court decisions Judicial action therefore tends to be unsystematic and uneven. Moreover, judicial decisions stand a good chance of being ineffective or effective in ways not intended he courts decisions are only binding on the case and cannot bring an unwilling dm inistra tor or private actor to a change of policy that would profit other people than the individual litigants who have enough resources, initiative, and foresight to take legalaction. So institutional factors raise questions about the power of judicial review in general. Nevertheless, people often go to court, because they want to resolve their conflicts In providing a solution to a given problem, the decisions of the courts contribute to the law in one way or another by the interpretation, the clarification, and, sometimes, the development of the law. Especially, in the development of law, courts are active in framing the aw. However, since the competing interests of the parties involved are necessarily at stake the resolution of the conflict according to the aw is another purpose why courts exist. The way in which the courts perform these two functions, conflict resolution and aw-making, can contribute to their and the laws The judiciary is multifaceted: supreme courts, courts of appeal, courts of first instance, etc. These courts may be divided into several divisions (or even separate courts), concerning, e.g, civil law, adm inistrative aw, criminal law, tax law cases Therefore, the ba lance between the objectives of the applicable law and the function of the court will differ. For example, in administrative aw for lower courts establishing the facts of the case at handand the legal protection of the citizen against the authorities may be more important than the court s function of developing the law or guaranteeing the unity of the lay E. g ECtHR 26 Apri 1979, Sunday Times v UK, Series A, No 30. P. De Hert Early Constnitionalism and Social Control. Liberal Democacy Hesitati between Rights Thinhing and liberty Thinking, doctoral thesis Brussels, p. 384. Cf J.A. Jolowiz, General Report, n: P. Yess iou-Faltsi(ed. ) The role of dhe Supreme Courts at the National and International Level, Thessaloniki: Sakkoulas Publications, 1998, p. 36
LEGITIMACY OF THE JUDICIARY 3 principles of proper administration of justice attributes to the legitimacy of the judiciary.7 These general principles of proper administration of justice are part of the general principles of law. Therefore, the legitimacy of the judiciary is closely connected to the legitimacy of the law. In the next sections, I will discuss the concept of legitimacy and its relation to legal principles. I will use some recent Dutch theses to illustrate the importance and the use of principles for the legitimacy of law in general and for the legitimacy of the judiciary in particular and to add a Dutch touch to the international debate. However, I will start with some characteristics of the judiciary, followed by an analysis of the concepts of legality and legitimacy. 2 Some characteristics of the judiciary The function of a court is to respond to a situation. Therefore, it has a passive nature. Judges do not choose their own agenda. Furthermore, principal limitations derive from the way in which cases get to the courts and the way in which issues are framed and reasons adduced and from the provisions for effectuating court decisions. Judicial action therefore tends to be unsystematic and uneven. Moreover, judicial decisions stand a good chance of being ineffective or effective in ways not intended. The courts decisions are only binding on the case and cannot bring an unwilling administrator or private actor to a change of policy that would profit other people than the individual litigants who have enough resources, initiative, and foresight to take legal action.8 So institutional factors raise questions about the power of judicial review in general. Nevertheless, people often go to court, because they want to resolve their conflicts. In providing a solution to a given problem, the decisions of the courts contribute to the law in one way or another by the interpretation, the clarification, and, sometimes, the development of the law. Especially, in the development of law, courts are active in framing the law. However, since the competing interests of the parties involved are necessarily at stake the resolution of the conflict according to the law is another purpose why courts exist.9 The way in which the courts perform these two functions, conflict resolution and law-making, can contribute to their and the law's legitimacy. The judiciary is multifaceted: supreme courts, courts of appeal, courts of first instance, etc. These courts may be divided into several divisions (or even separate courts), concerning, e.g., civil law, administrative law, criminal law, tax law cases. Therefore, the balance between the objectives of the applicable law and the function of the court will differ. For example, in administrative law for lower courts, establishing the facts of the case at hand and the legal protection of the citizen against the authorities may be more important than the court's function of developing the la w or guaranteeing the unity of the law. 7. E.g. ECtHR 26 April 1979, Sunday Times v. UK, Series A , No. 30. 8. P. De Hert, Early Constitutionalism and Social Control. Liberal Democracy Hesitating between Rights Thinking and Liberty Thinking, doctoral thesis Brussels, p. 384. 9. Cf. J.A. Jolowicz, `General Report', in: P. Yessiou-Faltsi (ed.), The Role of the Supreme Courts at the National and International Level, Thessaloniki: Sakkoulas Publications, 1998, p. 36
GRIBNAl The legitimacy of the judiciary cannot be assessed without taking in account the performance of the other aw-making institutions. Here we have to pay attention to the deficit of the regulative capacity of the normative structure of the general law which seems no longer able to express or transmit precise normative contents egis lation with its fomal characteristics of limited flexibility and reduced capacity for adaptation and self-correction seems ill-suited to the exercise of effective and timely control of the growing variety and variability of the cases which emerge from a complex society. Despite the flood of legislation, the nomative sovereignty assigned to the parliamentary legislator is usurped by the interpreters: the administrationand the judiciary(which has to control the administration ). No wonder the courts have to decide many cases, often with respect to immensely complex and interwoven problems. An important reason is that politics has been increasingly judicialized: there has been a substantal transfer of decision-making from the legislature, the cabinet, and the civil service to the courts. I In recent years, the Dutch Supreme Court has given new interpretations to existing statutes or fomulted new rules for unforeseen problems in many decisions, making new legislation unnecessary But also on issues on which Parliament was unable to pass legislation, such as the right to strike, euthanasia, and abortion, the Court has duced case law. More generally, comprom ise - an im portant characteristic of Dutch politics-is often to be found in the content of legislation: conflicting coalition opinions are assimilated in the text of new laws. Such a diffuse and vague statute often needs extensive interpretation before it can be applied in practice, which opens up the opportunity for the judiciary to ply an important role in many controversial matters.3 Furthermore, in public law, the judiciary has become more actively Involved in the legal protection of the citizen. This is all the more mportant, because the legislator often adopts the perspective of the administration and assigns discretionary powers to the adm inistration, whereas democratic control by parliament is dim inishing More generally, the diminishing authority of other law-making institutions may contribute to the comparatively high legitimacy of the courts, e.g., as a result of general disenchantment with the political branches of govemment Legality and legitimacy Power is a negative thing, authority a positive I4 In the hw, power and authority are related to legality and legitimacy, respectively. The meta-legal issue of legitimacy D. Zolo, Democracy and Complexit A Realist Appoach, Univers ity Park: The Pennsy ania State University Press, 1992, pp 127-128 I1. J. ten Kate and P J. van Koppen, The Netherlands: Toward a Form of Judicial Revew, m: CN. Tate and T. Vallinder The Global Expansion of udicial Power, New York: New York University Pess,1995p.370. Cf H Krabbendam/H M ten Napel(eds. Regulating Mbraliy. A Comparisonof the role of the State in Mastering Mbres in the Netherlandsand the United States Apeldoom: Maklu-uitgevers 2000 Ten Kate and Van Koppen 1995, pp 373-374 Vining1995,p.285
GRIBNAU 4 The legitimacy of the judiciary cannot be assessed without taking in account the performance of the other law-making institutions. Here we have to pay attention to the deficit of the regulative capacity of the normative structure of the general law, which seems no longer able to express or transmit precise normative contents. Legislation with its formal characteristics of limited flexibility and reduced capacity for adaptation and self-correction seems ill-suited to the exercise of effective and timely control of the growing variety and variability of the cases which emerge from a complex society. Despite the flood of legislation, the normative `sovereignty' assigned to the parliamentary legislator is usurped by the interpreters: the administration and the judiciary (which has to control the administration).10 No wonder the courts have to decide many cases, often with respect to immensely complex and interwoven problems. An important reason is that politics has been increasingly judicialized: there has been a substantial transfer of decision-making from the legislature, the cabinet, and the civil service to the courts.11 In recent years, the Dutch Supreme Court has given new interpretations to existing statutes or formulated new rules for unforeseen problems in many decisions, making new legislation unnecessary. But also on issues on which Parliament was unable to pass legislation, such as the right to strike, euthanasia, and abortion, the Court has produced case law.12 More generally, compromise – an important characteristic of Dutch politics - is often to be found in the content of legislation: conflicting coalition opinions are assimilated in the text of new laws. Such a diffuse and vague statute often needs extensive interpretation before it can be applied in practice, which opens up the opportunity for the judiciary to play an important role in many controversial matters.13 Furthermore, in public law, the judiciary has become more actively involved in the legal protection of the citizen. This is all the more important, because the legislator often adopts the perspective of the administration and assigns discretionary powers to the administration, whereas democratic control by parliament is diminishing. More generally, the diminishing authority of other law-making institutions may contribute to the comparatively high legitimacy of the courts, e.g., as a result of general disenchantment with the political branches of government. 3 Legality and legitimacy `Power is a negative thing, authority a positive.'14 In the law, power and authority are related to legality and legitimacy, respectively. The `meta -legal' issue of legitimacy 10. D. Zolo, Democracy and Complexity: A Realist Approach, University Park: The Pennsylvania State University Press, 1992, pp. 127-128. 11. J. ten Kate and P.J. van Koppen, The Netherlands: Toward a Form of Judicial Review, in: C.N. Tate and T. Vallinder, The Global Expansion of Judicial Power, New York: New York University Press, 1995, p. 370. 12. Cf. H. Krabbendam/H. M. ten Napel (eds.), Regulating Morality. A Comparison of the Role of the State in Mastering Mores in the Netherlands and the United States, Apeldoorn: Maklu-uitgevers, 2000. 13. Ten Kate and Van Koppen 1995, pp. 373-374. 14. Vining 1995, p. 285
LEGITIMACY OF THE JUDICIARY cannot be solved in tems of positive lw alone. Legitimacy' is sometimes used to describe in general terms the criteria for the validityof power, ie, its 'titlefor giving commands and demanding obedience from those who, in tum, are themselves under the obligation to obey. 15 The problem of legitimacy is thus closely related t political obligation because obedience is owed only to the commands of legitimate power. In this sense, legitimacy presupposes legality, the existence of a legal system and of a power issuing orders according to its rules. But legitimacy also provides the tification of lega lity, by surrounding power with an aura of a uthority. It is a kind of a special qualification, a surplus to the(pure)force which the state exercises in the name of the law. A legitimate system of law is distinct from a system of mere commands coercively enforced According to Weber, nowadays, the most usual basis of legitimacy is'the belief in legality, the readiness to conform with rules which are formally correct and have been mposed by accepted procedures. 16 Observing that modem societies are ruled by rational law, Weber identifies rational legitimacy with legality. This is the rule of law, not of men: commands or rational rules are issued in the name of an impersonal norm rather than in the name of a personal authority. 7 In tum, the issuing of a command constitutes obedience to a norm rather than an arbitrary decision. Power is legit imate in so far as it corresponds with rational norms. In this way, obedience is given to the norms rather than to the persons who issue the norms. I8 le of legality is thus closely the state under the rule of law. However, what kind of legitimation does this rationa legality offer? which values are assured by this notion of power as force exercised according to, and in the name of law?19 Posing this question means leaving the strictly formal approach, because it cannot be answered in purely descriptive tems We commit ourselves to a particular view about the end, the content of law itself, about the end pursued through norms and that justifies their existence 20 For lega lity to provide legit macy, on top of the normalization' of force, it must necessarily refer not only to the formalstructure of power but to its intrinsic nature An important issue in classical political theory is the evaluative distinction between legitimate and illegitimate power. The generalargument is that power must be supported by some ethical justification-a legal foundation -in order to survive. Therefore, legitimacy is regarded as a necessary condition for effectiveness. The fact A. Passerin d'Entreves, The Noton of the Stte. An Introduction t Political Theory, Oxford Clarendon Press, 1967, p. 141(following with a slight shift of emphasis, Max Weber's analys s of historic forms of legitimacy) M. Weber, Wirtschaff td Gesellschaft, Tubingen: IC B Mohr(Paul Siebeck)1972, p. 19 Weber's three pure or deal types of legitimate power(Henrschaf, as distinct from mere force ( Macht)are traditional power, legal-rational power, and charismatic power. A.J. Hoekema and N F van Maanen, Typen wan lgalteit Kluwer 2000, P 45 ff label this type of legality formal legality, bes ide which they distinguish, compensation legality, rik collectivization legality, forum legality, cooperative legality, and pluralistic legality Weber 1972, pp Passennd'Entreves 1967, p. 144 Passenind'Entreves 1967, p. 14
LEGITIMACY OF THE JUDICIARY 5 cannot be solved in terms of positive law alone. `Legitimacy' is sometimes used to describe in general terms the criteria for the `validity' of power, i.e., its `title' for giving commands and demanding obedience from those who, in turn, are themselves under the obligation to obey.15 The problem of legitimacy is thus closely related to political obligation because obedience is owed only to the commands of legitimate power. In this sense, legitimacy presupposes legality, the existence of a legal system and of a power issuing orders according to its rules. But legitimacy also provides the justification of legality, by surrounding power with an aura of authority. It is a kind of a special qualification, a surplus to the (pure) force which the state exercises in the name of the law. A legitimate system of law is distinct from a system of mere commands coercively enforced. According to Weber, nowadays, the most usual basis of legitimacy is `the belief in legality, the readiness to conform with rules which are formally correct and have been imposed by accepted procedures.'16 Observing that modern societies are ruled by rational law, Weber identifies rational legitimacy with legality. This is the rule of law, not of men: commands or rational rules are issued in the name of an impersonal norm rather than in the name of a personal authority.17 In turn, the issuing of a command constitutes obedience to a norm rather than an arbitrary decision. Power is legitimate in so far as it corresponds with rational norms. In this way, obedience is given to the norms rather than to the persons who issue the norms.18 The principle of legality is thus closely connected to the modern conception of the state under the rule of law. However, what kind of legitimation does this rational legality offer? Which values are assured by this `notion of power as force exercised according to, and in the name of law'?19 Posing this question means leaving the strictly formal approach, because it cannot be answered in purely descriptive terms. We commit ourselves to a particular view about the end, the content of law itself, about the end pursued through norms and that justifies their existence.20 For legality to provide legitimacy, on top of the `normalization' of force, it must necessarily refer not only to the formal structure of power but to its intrinsic nature. An important issue in classical political theory is the evaluative distinction between legitimate and illegitimate power. The general argument is that power must be supported by some ethical justification – a legal foundation – in order to survive. Therefore, legitimacy is regarded as a necessary condition for effectiveness. The fact 15. A. Passerin d'Entrèves, The Notion of the State. An Introduction to Political Theory, Oxford: Clarendon Press, 1967, p. 141 (following, with a slight shift of emphasis, Max Weber's analysis of historic forms of legitimacy). 16. M. Weber, Wirtschaft und Gesellschaft, Tübingen: J.C.B. Mohr (Paul Siebeck) 1972, p. 19. Weber's three pure or ideal types of legitimate power (Herrschaft), as distinct from mere force (Macht) are traditional power, legal-rational power, and charismatic power. 17. A.J. Hoekema and N.F. van Maanen, Typen van legaliteit, Deventer: Kluwer 2000, p. 45 ff label this type of legality `formal legality', beside which they distinguish,compensation legality, risk collectivization legality, forum legality, cooperative legality, and pluralistic legality. 18. Weber 1972, pp. 349-350. 19. Passerin d'Entrèves 1967, p. 144. 20. Passerin d'Entrèves 1967, p. 145