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
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
LEGITIMACY OF THE JUDICIARY The continuous back-and-forth between the legal point of view and the moral point of view of the other to which the legal point of view is accountable provides the judge with an opportunity for interpretation. For adjudication is interpretation Adjudication is the process by whicha judge comes to understand the meaning ofan authoritative legal text and the values in that text 37 Klein Kranenberg, inspired by az, then uses the concept of detached point of view, which defines law as an effective power with an intelligible claim to practical authority. In detached statements, laws authority is re latinized to a point of view, but still explained as de Jure, not as de facto, 38 Interpretation, as seen from this 'detached point of view, is the decision to improve, or to make an exception to, the rule if respect for the other so requires. The more a judge has confidence in the moral standards of the other(and thus of himself before he adopted the legal point of view), the arger his interpretive space will be the less he has confidence in the other (and thus in himself), the more fomal he will be. Thus, interpretation is presented as only an instrument to repa ir law, which itself is an instrument of justice, and not as an authority-cla im ing decision that creates an exception to an authority-chiming rule. The way interpretation works according to the intemal point of view, is by determ ining the meaning of law as the legis lator really meant it, so that law will again be able to produce justice on its own. Hence, the internal point of view operates by transform ing conflicts between the legal and the moral points of view into disa greements about the meaning of words. The internal point of view declares itself indispensa ble to authoritatively ending these disagreements g explains what makes it is possible for the law to exist Is a normative phenomenon which is binding upon judges. The analogy between riendship and respect for law is instructive but seems a little far-fetched, because abstract respect for la w is not based on a personal, symmetrical, in important aspects emotional, reciprocal relationship. 39 Pessers elaborates on this fundamental notion of mutua lity 4o She defends the thesis that the principle of m uta lity refers not only to the simple retributive justice of do ut des, or the complementarity of rights and bligations(both elements of reciprocity ) but also to solidarity. In homogeneous social groups mutua lity takes the fomm of the exchange of services accord ing to each others needs in the confidence of a rough balancing out in the long run Parties take alternating posit ions as creditor and debtor. In her view, modem aw forces human beings- being strangers in large, heterogeneous societies-to recognize the otherat O Fiss, Objectivity and Interpretation, 43 Sanford Law Review(1982) p. 739 Klen Kranenberg 1999, p. 78. Cf. J. Raz, The Authority of law, Oxford: Clarendon Press Cf Raz 1979, p. 250 ff. Pleasenote that friends have an exitoption, whch the legislator, judges and citizens do nothave, at last to leave the kgal order s not a serious poss ibil ty for most citizens D. Rssers, Liefde solidaniteit en recht. Een interdisciplinairondermek nmaarhet wederkerig heidsbeginsel, (doctoral thess) Amsterdam 1999. Ressers rather confus ngly exchanges abstract mutuality and reciprocity- more personal, equal ity-based, and related to the do ut des- prncple dev iating from common parlance. I do notfollowher in ths respect; see A Gewirth, The Community pf Rights, Chicago: Chicago University Press 1996, pp. 76-78
LEGITIMACY OF THE JUDICIARY 9 The continuous back-and-forth between the legal point of view and the moral point of view of the `other' to which the legal point of view is accountable provides the judge with an opportunity for interpretation. For adjudication is interpretation. `Adjudication is the process by which a judge comes to understand the meaning of an authoritative legal text and the values in that text.'37 Klein Kranenberg, inspired by Raz, then uses the concept of `detached point of view', which defines law as an effective power with an intelligible claim to practical authority. In detached statements, `law's authority is relativized to a point of view, but still explained as de jure, not as de facto.'38 Interpretation, as seen from this `detached point of view', is the decision to improve, or to make an exception to, the rule if respect for the other so requires. The more a judge has confidence in the moral standards of the other (and thus of himself before he adopted the legal point of view), the larger his interpretive space will be; the less he has confidence in the other (and thus in himself), the more formal he will be. Thus, interpretation is presented as only an instrument to repair law, which itself is an instrument of justice, and not as an authority-claiming decision that creates an exception to an authority-claiming rule. The way interpretation works according to the internal point of view, is by determining the meaning of law as the legislator really meant it, so that law will again be able to produce justice on its own. Hence, the internal point of view operates by transforming conflicts between the legal and the moral points of view into disagreements about the meaning of words. The internal point of view declares itself indispensable to authoritatively ending these disagreements. Thus, Klein Kranenberg explains what makes it is possible for the law to exist as a normative phenomenon which is binding upon judges. The analogy between friendship and respect for law is instructive but seems a little far-fetched, because abstract respect for law is not based on a personal, symmetrical, in important aspects emotional, `reciprocal' relationship.39 Pessers elaborates on this fundamental notion of mutuality.40 She defends the thesis that the principle of mutuality refers not only to the simple retributive justice of do ut des, or the complementarity of rights and obligations (both elements of reciprocity), but also to solidarity. In homogeneous social groups mutuality takes the form of the exchange of services according to each other’s needs in the confidence of a rough balancing out in the long run. Parties take alternating positions as creditor and debtor. In her view, modern law forces human beings – being strangers in large, heterogeneous societies - to recognize the other at 37. O. Fiss, `Objectivity and Interpretation', 43 Stanford Law Review(1982), p. 739. 38. Klein Kranenberg 1999, p. 78. Cf. J. Raz, The Authority of Law, Oxford: Clarendon Press, 1979. 39. Cf. Raz 1979, p. 250 ff. Please note that friends have an exit option, which the legislator, judges and citizens do not have; at least to leave the legal order is not a serious possibility for most citizens. 40. D. Pessers, Liefde, solidariteit en recht. Een interdisciplinair onderzoek naar het wederkerigheidsbeginsel, (doctoral thesis) Amsterdam 1999. Pessers rather confusingly exchanges abstract mutuality and reciprocity - more personal, equality-based, and related to the do ut des- principle - deviating from common parlance. I do not follow her in this respect; see A. Gewirth, The Community of Rights, Chicago: Chicago University Press 1996, pp. 76-78
GRIBNAU least as a co-mem ber of the community of law. 'In this way law functions as a symbolic order through which in the other the own legal subjectivity is reflected 41 owever, a co-mem ber of the community of law will not acquire any solidarity-in the sense of mutua lity -until this symbolic legal order(as a kind of intermediary) reflects more than just a common legal subjectivity. According to Pessers, the growing influence of the norm of mutuality is the essence of the socializing of law (including protection of a weaker contracting party, etc. gal order constitutes mutuality between strangers. Klein Kranenberg is right in that mutual trust is a necessary condition for a legal order. The legislator, judges ind citizens all need to have faith in aw, before they know the content of concrete legal regulations and decisions. But mutual trust is not a sufficient condition for legit macy of legal decisions. What is missing in her theory is any view about the content of aw, a particular view on the aim of lw. The judge is bound by aws blind promise of justice, but she does not offer us any criterion or standard for justice. In particular, she does not mention legal principles(especially principles wh ich do not originate from the competent legal authorities) 5 Legal principles as the normative core oflaw+ Positivists certa inly have a point in insisting that a w needs to be made by competent la makers. However, they are wrong in maintaining that these la wmakers are not bound by any other norm than the legal norms issued by higher legal authorities Their theory does not account for legal valuesand principles, as a basis for criticizing legislation and legal decisions like judicial decisions, for lawmakers are bound by legal principles. Therefore, besides the concept of legality we need the concept of legit macy to explain the authority of aw and the citizens' duty of obedience to the The law itself ams to realise a value, ie, justice, which is the specific constitutive value of law.+3 As such, it is a system which em bodies values which are essential determinants of the laws content 44 Some of these more specific legal values are legality, equality, predictability, transparency, judicial) impartiality, a fair opportunity to be heard. Principles can be considered as expressions of legal values, and constitute the nomative core of law in a modem democra tic state. law is connected to the fundamental norms and values prevalent in a society of free and equalcitizens by means of general legal principles Dworkin defines a principle as a standard which is to be observed because it is a requirement of justice or fairness or some other dimension of morality.>However, Pessers 1999 p. 246 An earlier version of this section i to be found in J L.M. Gribnau, General Intro duction, in: G.T. K Meussen(ed ) The Prncipleof Equality in European Taxation, The Hagueetc.: Kluwer Law 43. G. Radbruch, Legal Philosophy, n: The Legal Philosophies of Lask, Radbruch and Dabin, Cambrdge, Mass.: Harvard University Press, 1950, pp. 107-111. Cf S. Taekema The Concept Ideals in Legal Theory(doctoral thesis Tilburg), Tilburg Schoordijk Instituut, 2000, p. 41 ff. RS Summers, Instrumentalism and American Legal Theory, Ithaca and London: Comell iversity Press, 1982,P. 59 R Dworkin, Taking Rights Seriously, London: Duckworth, 1977, p. 22
GRIBNAU 10 least as a co-member of the community of law. `In this way law functions as a symbolic order through which in the other the own legal subjectivity is reflected.'41 However, a co-member of the community of law will not acquire any solidarity – in the sense of mutuality – until this symbolic legal order (as a kind of intermediary) reflects more than just a common legal subjectivity. According to Pessers, the growing influence of the norm of mutuality is the essence of the `socializing of law' (including protection of a weaker contracting party, etc.) Legal order constitutes mutuality between strangers. Klein Kranenberg is right in that mutual trust is a necessary condition for a legal order. The legislator, judges and citizens all need to have faith in law, before they know the content of concrete legal regulations and decisions. But mutual trust is not a sufficient condition for legitimacy of legal decisions. What is missing in her theory is any view about the content of law, a particular view on the aim of law. The judge is bound by law's blind promise of justice, but she does not offer us any criterion or standard for justice. In particular, she does not mention legal principles (especially principles which do not originate from the competent legal authorities). 5 Legal principles as the normative core of law42 Positivists certainly have a point in insisting that law needs to be made by competent lawmakers. However, they are wrong in maintaining that these lawmakers are not bound by any other norm than the legal norms issued by higher legal authorities. Their theory does not account for legal values and principles, as a basis for criticizing legislation and legal decisions like judicial decisions, for lawmakers are bound by legal principles. Therefore, besides the concept of legality we need the concept of legitimacy to explain the authority of law and the citizens' duty of obedience to the law. The law itself aims to realise a value, i.e., justice, which is the specific constitutive value of law. 43 As such, it is a system which embodies values which are `essential determinants of the law's content.'44 Some of these more specific legal values are legality, equality, predictability, transparency, (judicial) impartiality, a fair opportunity to be heard. Principles can be considered as expressions of legal values, and constitute the normative core of law in a modern democra tic state. Law is connected to the fundamental norms and values prevalent in a society of free and equal citizens by means of general legal principles. Dworkin defines a principle as a standard which is to be observed because it is `a requirement of justice or fairness or some other dimension of morality'.45 However, 41. Pessers 1999, p. 246. 42. An earlier version of this section is to be found in J.L.M. Gribnau, `General Introduction', in: G.T.K. Meussen (ed.), The Principle of Equality in European Taxation, The Hague etc.: Kluwer Law International, 1999, pp. 1-33. 43. G. Radbruch, `Legal Philosophy', in: The Legal Philosophies of Lask, Radbruch and Dabin, Cambridge, Mass.: Harvard University Press, 1950, pp. 107-111. Cf. S. Taekema, The Concept of Ideals in Legal Theory (doctoral thesis Tilburg), Tilburg Schoordijk Instituut, 2000, p. 41 ff. 44. R.S. Summers, Instrumentalism and American Legal Theory, Ithaca and London: Cornell University Press, 1982, p. 59. 45. R. Dworkin, Taking Rights Seriously, London: Duckworth, 1977, p. 22
