GRIBNAU that(supreme) power must have an ethical justification has given rise to several evaluative principles of legitimacy. 2I However, the arrival of legal positivism seemed to do a way with this kind of justification which power needed in order to survive. According to Kelsen, one of the most eminent supporters of positiv ist theory a legal norm is not valid because it has a certa in content, but because it is created in a certa in way. 22 Here, we should keep in mind that, for Kelsen, law is a system of norms the- presupposed -basic nom(Grundnorm)is at the top of this nomative hierarchy. For this reason alone, the validity of each norm within the system, what makes it belong to the legal order or system, is detemm ined not by an evaluation of its content, but by the specific process it is created by. The only criterion is whether that norm was produced or posited in accordance with the criteria of validity of a higher norm.23 Therefore any kind of content might be law. 24 To Kelsen, the principle of legitimacy means that a norm of a legal order is valid until its validity is teminated in a way determ ined by this legal order or replaced by the validity of another norm of this order. 25 This Kelsenian principle of legit macy is limited by the principle of effectiveness. Although, according to Kelsen the validity of a legal nom is not identical with its effectiveness, effectiveness is the condition(but not the reason) for validity in the sense that a legal order as a whole, and a single legal norm, can no longer be regarded as valid when they cease to be effective: 26 For norms to be effective, they must be executed. A constit ut ion or legal order is effective if the norms created in conformity with it are by and large and obeyed. So, from the positiv ist point of view, le git macy is purely and simply a matter of fact; legitimacy derives no longer from evaluative criteria but from the reasons of efficacy. Furthermore, legality is identical with legitimacy. For, in the positivist onception, law is considered law only if made by authorities appointed by the system itself and enforced by other authorities also appointed by the system. This means, according to Kelsen, that the principle of legitimacy can be restated as the principle that a norm may be created only by the competent organ, that is, the organ authorized for this purpose by a valid legal norm. 27 Therefore, the question of the legality [Gesetemeissigkeit] of a judical decision(...)is the question whether an act at claims to creating [ ! a legal norm conforms to the higher nom which regulates s creation' is the question of the competent a uthority 28 In conclusion, to the positivist, law is considered bw only if created by Cf. N. Bobbio, Democracy and Dictatorship, Minneapolis: University of Minesota Pre 1989, pp 83-86, distinguishes at leastsix which can be grouped together as antithetical pairs of the three great unifying principles, will, nature and history H. Kelsen, Pure Theory of Law(1960) Gloucester, Mass, Reter Smith, 1989, p. 198 Ultimately, the legal nom must becreated in a way detemned by the basicnorm. Cf D Dyzenhaus, Legality and Legitimacy, Car Schmitt, Hans Kelsen and Herman Heller Weimar, Oxford, Clarendon Press 1997,. 10 Kelsen 1989,p. 198 Kelsen 1989, p. 209 Kelsen 1989, pp 211-212 Passenind'Entreves 1967, p. 148
GRIBNAU 6 that (supreme) power must have an ethical justification has given rise to several evaluative principles of legitimacy. 21 However, the `arrival' of legal positivism seemed to do away with this kind of justification which power needed in order to survive. According to Kelsen, one of the most eminent supporters of positivist theory, a legal norm is not valid because it has a certain content, but because it is created in a certain way.22 Here, we should keep in mind that, for Kelsen, law is a system of norms; the – presupposed - basic norm (Grundnorm) is at the top of this normative hierarchy. For this reason alone, the validity of each norm within the system, what makes it belong to the legal order or system, is determined not by an evaluation of its content, but by the specific process it is created by. The only criterion is whether that norm was produced or posited in accordance with the criteria of validity of a higher norm.23 `Therefore any kind of content might be law.'24 To Kelsen, the principle of legitimacy means that `a norm of a legal order is valid until its validity is terminated in a way determined by this legal order or replaced by the validity of another norm of this order.'25 This Kelsenian principle of legitimacy is limited by the principle of effectiveness. Although, according to Kelsen, the validity of a legal norm is not identical with its effectiveness, effectiveness is the condition (but not the reason) for validity `in the sense that a legal order as a whole, and a single legal norm, can no longer be regarded as valid when they cease to be effective'.26 For norms to be effective, they must be executed. A constitution or legal order is effective if the norms created in conformity with it are by a nd large applied and obeyed. So, from the positivist point of view, legitimacy is purely and simply a matter of fact; legitimacy derives no longer from evaluative criteria but from the reasons of efficacy. Furthermore, legality is identical with legitimacy. For, in the positivist conception, law is considered law only if made by authorities appointed by the system itself and enforced by other authorities also appointed by the system. This means, according to Kelsen, that the principle of legitimacy can be restated as the `principle that a norm may be created only by the competent organ, that is, the organ authorized for this purpose by a valid legal norm.'27 Therefore, `the question of the legality [Gesetzmässigkeit] of a judicial decision () is the question whether an act that claims to creating [!] a legal norm conforms to the higher norm which regulates its creation' is the question of the competent authority.28 In conclusion, to the positivist, law is considered law only if created by 21. Cf. N. Bobbio, Democracy and Dictatorship, Minneapolis: University of Minnesota Press 1989, pp. 83-86, distinguishes `at least six which can be grouped together as antithetical pairs of the three great unifying principles, will, nature and history'. 22. H. Kelsen, Pure Theory of Law (1960), Gloucester, Mass., Peter Smith, 1989, p. 198. Ultimately, the legal norm must be created in a way determined by the basic norm. 23. Cf. D. Dyzenhaus, Legality and Legitimacy, Carl Schmitt, Hans Kelsen and Herman Heller in Weimar, Oxford, Clarendon Press 1997, p. 103. 24. Kelsen 1989, p. 198. 25. Kelsen 1989, p. 209. 26. Kelsen 1989, pp. 211-212. 27. Kelsen 1989, p. 276. 28. Passerin d'Entrèves 1967, p. 148
LEGITIMACY OF THE JUDICIARY competent authorities. However, as Spinoza already observed, the power and the right of a government depends on the way it uses its competencies. % Therefore, to dge the legitimacy of a legal order, and more specifically of a judicial decision, we should abandon the strictly fomal and descriptive appoach. To evaluate aw, e.g, legal rules and judicial decisions, n terms of good law, which should be obeyed, we have to look at the content of law and the end of the legal noms. 'A value-chuse must be inserted somewhere in the legal system Otherwise, we cannot assume that the judge is the holder not only of power, but of legit imate power. 30 Thus, legitimacy concems eva ative criteria for the obligation to obey the law Directives, rules, or decisions can generate a legitima te obligation to obey they give od reasons for acting in accordance with their content. According to Lucy, the legitimacy condition of law holds that judicial decisions and other sources of lw can in some circumstances be authoritative I The legit macy of the judiciary thus means the recognition of the authority of the judicary and its decisions. The litigant party who is ordered recognizes the judge who orders as a positive guidance. The judge should do more than exercise legal power, he is to inspire initiative and willing obedience in the name of aw. Law, and its voice, the judge, is to evoke initiative and willing obedience 32 With Habermas, we can name legality and legitimacy the two dimensions of legal validity. The dimension of legitimacy concerns rationa procedures for making and apply ing law which prom ise to legitimate the expectations that are stabilized in this way. Law-abiding behav iour, based on respect for the law (the norms deserve legal obedience,), involves more than mere integrative function. 33 In order to fulfil this function and the legitimacy claim of bw court rulings must be capable if being consistently rendered within the framework of e existing legal order and they should be rationally grounded so that all parties involved can accept them as rational decisions. 34 Below, I will discuss the importance of principles which serve the laws aim of justice Principles are evaluative criteria for the law and therefore for the laws claim to legitimacy. There, I will return to these conditions(meta principles)of consistent E.g., Spnoza, Tractatus theologico-politicus(transl S. Shrly ) Leiden, EJ. Brill, p. 237ff. According to Bobbio 1989, p. 143, hesees things ex part populi from the view of theruled n order to justify theirright not to be oppressed and the ruler's duty to proclaim just laws. Cf. J.L M. Gribnau, forcedudrot. La contr bution de Spinoza a la theorie du droit, Revue interdisaiphnaire deludes juridiques, decembre 1995/janvier 1996 30 Bobbio 1989, p. 88 W. Lucy, Understanding and Explaining Adindiaation, Ford: Oxford University Press, 1999, Vining1995,pp.286287. According L M. Fredman, Total Justice, New York: Russel Sage Foundation, 1994b (1985) p. 30, we shoud not overestmate the strength and value of legitimacy as a factor n social Integration. J. Habemas, Between Fads and Norms, Oxford: Polity Press, 1996, p. 198.However, we should take into account, as Lucy reminds us, that even mistaken bgal propositions can sometmes have legitimateauthority and thus generate obligations to obey
LEGITIMACY OF THE JUDICIARY 7 competent authorities. However, as Spinoza already observed, the power and the right of a government depends on the way it uses its competencies.29 Therefore, to judge the legitimacy of a legal order, and more specifically of a judicial decision, we should abandon the strictly formal and descriptive approach. To evaluate law, e.g., legal rules and judicial decisions, in terms of `good law', which should be obeyed, we have to look at the content of law and the end of the legal norms. `A value-clause must be inserted somewhere in the legal system'. Otherwise, we cannot assume that the judge is the holder not only of power, but of legitimate power.30 Thus, legitimacy concerns evaluative criteria for the obligation to obey the law. Directives, rules, or decisions can generate a legitimate obligation to obey: they give good reasons for acting in accordance with their content. According to Lucy, the `legitimacy condition of law' holds that `judicial decisions and other sources of law can in some circumstances be authoritative'.31 The legitimacy of the judiciary thus means the recognition of the authority of the judiciary and its decisions. The litigant party who is ordered recognizes the judge who orders as a positive guidance. The judge should do more than exercise legal power; he is to inspire initiative and willing obedience in the name of law. Law, and its voice, the judge, is to evoke initiative and willing obedience.32 With Habermas, we can name legality and legitimacy the two dimensions of legal validity. The dimension of legitimacy concerns rational procedures for making and applying law which promise to legitimate the expectations that are stabilized in this way. Law-abiding behaviour, based on respect for the law (`the norms deserve legal obedience'), involves more than mere compliance. In this way, according to Habermas, the legal order can fulfil a socially integrative function.33 In order to fulfil this function and the legitimacy claim of law, court rulings must be capable if being consistently rendered within the framework of the existing legal order and they should be rationally grounded so that all parties involved can accept them as rational decisions.34 Below, I will discuss the importance of principles which serve the law's aim of justice. Principles are evaluative criteria for the law and therefore for the law's claim to legitimacy. There, I will return to these conditions (meta principles) of consistent 29. E.g., Spinoza, Tractatus theologico-politicus (transl. S. Shirly), Leiden, E.J. Brill, p. 237 ff. According to Bobbio 1989, p. 143, he sees things ex parte populi, from the `view of the ruled in order to justify their right not to be oppressed and the ruler's duty to proclaim just laws'. Cf. J.L.M. Gribnau, `La force du droit. La contribution de Spinoza à la theorie du droit', Revue interdisciplinaire d'études juridiques, decembre 1995/janvier 1996. 30. Bobbio 1989, p. 88. 31. W. Lucy, Understanding and Explaining Adjudication, Oxford: Oxford University Press, 1999, pp. 140-141. 32. Vining 1995, pp. 286-287. 33. According L.M. Friedman, Total Justice, New York: Russel Sage Foundation, 1994b (1985), p. 30, we should not overestimate the strength and value of legitimacy as a factor in social integration. 34. J. Habermas, Between Facts and Norms, Oxford: Polity Press, 1996, p. 198. However, we should take into account, as Lucy reminds us, that even mistaken legal propositions can sometimes have legitimate authority and thus generate obligations to obey
GRIBNAU decision-making and rational acceptability. Respect for general principles of la ontributes to the consistency and rationality of judical decisions, and, therefore, to their legitimacy. egitimacy based on mutual trust Klein Kranenberg sets out to provide an original justification of legal authority by analyzing the relation between the authority of law and legal interpretation. > It is often said that legal interpretation undermines the authority of law, because the person(or institution) who interprets the la w really detem ines what ought to be done t also genera lly accepted that the law never speaks for itself but always stands in need of interpretation, scepticism about the possibility of a govemment of laws, not of men is never far off in discussions a bout judicial interpretation. Klein Kranenberg defends the thesis that the authority of law is made possible by mutual trust between the legislator and its citizens and that judicial interpretation, rather than disrupting this trust, is an indispensable means to preserve it. An analysis of some important contemporary debates in legal philosophy leads her to the conclusion that law does not claim authority after, but before its meaningcan be known In order to get a better grasp of the moral dilemma created by the hws claim to blind obedience, i.e, to accept the authority of aw even when nothing a bout its content can be known, she draws an analogy between friendship and respect for law Both friendship and a legal system are founded on mutual trust. This foundation of rust distinguishes a system of rules from a set of orders and, al though itself unjustified by anything other than one's willingness to put one 's fath in the law, it ustifies one's acceptance of laws authority exante The judge, the representative par excellence of the legal point of view, is as bound by the laws blind promise of justice as if he had made it himself. That means that he is bound to a promise of justice, which is attributed to him by the other to whom he applies the law. For only if this other finds his own sense of justice he be expected toaccept laws clam to authority. Hence, we find that anyone who appeals to the law as requiring a particular decision is by that act bound to a promise of justice, the content of which is determined by precisely the J. Klem Kranenberg, Authorityand hnte pre tation(doctoral thess Santiago de Chile/Tilburg: oordik Institute, I Klein Kranenberg 1999, p 113
GRIBNAU 8 decision-making and rational acceptability. Respect for general principles of law contributes to the consistency and rationality of judicial decisions, and, therefore, to their legitimacy. 4 Legitimacy based on mutual trust Klein Kranenberg sets out to provide an original justification of legal authority by analyzing the relation between the authority of law and legal interpretation.35 It is often said that legal interpretation undermines the authority of law, because the person (or institution) who interprets the law really determines what ought to be done. Since it is also generally accepted that the law never speaks for itself but always stands in need of interpretation, scepticism about the possibility of `a government of laws, not of men' is never far off in discussions about judicial interpretation. Klein Kranenberg defends the thesis that the authority of law is made possible by mutual trust between the legislator and its citizens and that judicial interpretation, rather than disrupting this trust, is an indispensable means to preserve it. An analysis of some important contemporary debates in legal philosophy leads her to the conclusion that law does not claim authority after, but before its meaning can be known. In order to get a better grasp of the moral dilemma created by the law's claim to blind obedience, i.e., to accept the authority of law even when nothing about its content can be known, she draws an analogy between friendship and respect for law. Both friendship and a legal system are founded on mutual trust. This foundation of trust distinguishes a system of rules from a set of orders and, al though itself unjustified by anything other than one's willingness to put one's faith in the law, it justifies one's acceptance of law's authority ex ante. The judge, the representative par excellence of the legal point of view, is as bound by the law's blind promise of justice as if he had made it himself. That means that he is bound to a promise of justice, which is attributed to him by the `other' to whom he applies the law. For only if this `other' finds his own sense of justice respected by the law can he be expected to accept law's claim to authority. Hence, we find that anyone who appeals to the law as requiring a particular decision is by that act bound to a promise of justice, the content of which is determined by precisely the `other' whose obedience to law he claims.36 35. J. Klein Kranenberg, Authority and Interpretation (doctoral thesis), Santiago de Chile/ Tilburg: Schoordijk Institute, 1999. 36. Klein Kranenberg 1999, p. 113