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,$ 34GRIBNAU 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