Courts in Quest for Legitimacy: a comparative approach
Let me open this paper with a statement. The legitimacy of the judiciary is at risk, in several countries for similar reasons. In my own country – the Netherlands - the whereabouts of the judiciary and adjudication are subject of permanent attention of the public media. A criminal case of judicial error – an innocent man appears to have been imprisoned for 4 years – has raised serious questions about the functioning of criminal justice. Criminal lawyers plead for a more adverserial criminal trial.3 A member of parliament has even gone so far as to plead for the (re)introduction of laymen in the criminal justice system.4 The functioning of the civil judge too, is at stake in the public media. The complaints are that the judiciary is too slow and too expensive to be a serious option for conflictresolution. With some exaggeration one can say that civil adjudication is only for large corporations and other repeat-players.5 Lastly, the administrative judiciary is in discussion because of the somewhat shady borderline it shares with politics. The separation of administrative justice from the government is always an issue, because the judiciary has to manoeuvre between formalism and activism. On the institutional level, the combination of administrative adjudication and legislative advise within the Council of state is hard to reconcile with article 6 ECHR (fair trial).6 All this raises questions of a more general nature for the judiciary. How can independence be reconciled with accountibility? How can judicial quality be combined with efficiency and productivity? What does the cry for transparancy mean for the principle of open justice? And what do authority and legitimacy mean in present society?