Legitimacy and Trust in Criminal Law, Policy and Justice

Norms, Procedures, Outcomes

Nina Peršak

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317105848
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Whereas previous studies of legitimacy and trust have mostly dealt with procedural justice and the police, this book focuses on other crucial understudied aspects of legitimacy within criminal law, policy and criminal justice. The chapters expand and develop current criminological, legal and socio-legal research by addressing conceptions of legitimacy linked to criminal law norms, criminalisation and sanctioning; by examining EU legal and policy aspects of the phenomenon; and by exploring some specific court-related issues of legitimacy and trust, hitherto neglected. With contributions from across the EU, this interdisciplinary collection presents a valuable discussion on the importance of trust in legal institutions of modern democracies and suggests ideas for future research in this area to challenge ways of thinking about legitimacy.

Chapter 1

Beyond Procedural Justice: Some Neglected Aspects of Legitimacy of Criminal Law, Policy and Justice

Nina Peršak

The ‘legitimacy crisis’ of the state, legal institutions, and in particular in the criminal justice system, has become a much-observed phenomenon that is said to be plaguing several European democracies. Trust in advanced industrial democracies has similarly been reported to be in decline since the 1960s (Putnam 1995, Dalton 2005), with recent declines aggravated by the effects of the global financial crisis. The connection between the two notions is not accidental: when people lose trust in the state, government, legal institutions or the rule of law, they tend to perceive the last as less legitimate.

Trust in law, in the legal system and authorities behind it, is important in several ways. Law participates in the creation of normative culture, which is considered given and stable and is thus contributing to the balance of the social system. If law or the legal system are perceived as not functioning properly, this not only causes significant imbalances within the social system but also destabilises the normative culture by shaking the public belief in its stability and immutability. This may trigger great distress among the public and become a source of fears and insecurities, which can in turn fuel various negative social phenomena, such as crime and xenophobia. The lack of trust can create a breeding ground for populist and extremist movements and invite the criminalisation of ‘the other’, the anti-social, marginal or migrant. Lack of trust, fears and insecurities may also further decrease the public trust in the legal system and stimulate disrespect towards authorities. The non-functioning or malfunctioning of the legal system thereby impinges on trust in the ‘order of things’ and on the trust in those who were entrusted with maintaining this order.

From the viewpoint of society (and democracy, in particular), at least minimal trust in political institutions is required to enable their functioning. Even though no government enjoys – and perhaps even ought to – enjoy the absolute trust of its citizens, it must enjoy at least a minimum of public confidence in order to operate effectively. Trust enables governments to function properly without having to seek approval from citizens for every decision or resort to coercion. Trust is also crucial for the establishment of civil society, the creation of the sense of community and successful participation of individuals in the public life and collective institutions, be they political, such as political parties, economic or social (Mishler and Rose 1997). Trust, furthermore, facilitates coordination and cooperation. In the area of criminal justice, cooperation takes shape mostly through compliance: trust leads to the perceived legitimacy of an authority, which is one of the reasons why people comply with it and its decisions or the reason why people obey the law.

Regardless of the type of trust, it has to be remembered, however, that the trust itself – be it interpersonal or institutional – need not be necessarily a ‘good thing’. If others conduct themselves dishonestly, trust turns into gullibility (Letki 2006). Since trust is an effective strategy only if others are trustworthy (Letki 2006), it follows a contrario that trusting institutions is not an effective strategy (i.e. equals gullibility) if those institutions are not trustworthy. What is therefore needed, in addition to trust, is a certain more objective quality, actual inner legitimacy, of the institution in order for it to deserve this trust and in the long run be able to maintain it. Considering ‘legitimacy is the recognition of the right to govern’ (Coincaud 2002: 10), the lack of legitimacy erodes the justification for the governance and acceptability of its power, which should be reflected in our trust towards it.

Until about a decade ago, issues of trust have been mainly ignored within the criminological literature (Crawford 2000). Legitimacy, too, being for a long time studied mostly within political science, has recently emerged or re-emerged as a research interest within criminology, although legitimacy has so far been mostly researched through the model of procedural justice and has mostly concentrated on the police or policing (e.g. Tyler 1990, 2003, Tyler and Wakslak 2004, Reisig 2007, Hough et al. 2010, Tyler 2012) and to some extent on prisons (e.g. Sparks, Bottoms and Hay 1996, Liebling 2004, Reisig and Meško 2009). This reinvigorated research in the study of legitimacy (problems) can at least partly be attributed to increasing concerns over legitimacy of criminal justice, and perhaps over legitimacy of state in general.

Legitimacy concerns in the area of criminal justice are, however, still in the process of being properly framed. The lack of agreed, water-tight definition of legitimacy in this area has at least partly to do with the fact that criminal justice scholars come from different disciplines – disciplines that use different conceptions of legitimacy, which consequently provide different points of departure. Some focus primarily on legitimacy conceptualised as public acceptance, agreement or consent to x. Enlightenment thinker John Locke (1995: 191), writing in the late seventeenth-century Britain, argued that the government is not legitimate unless it has the consent of the governed. If trust is breached, the consent is withdrawn and the power must ‘devolve into the hands of those that gave it’, i.e. the people. Weber (1978) laid the foundation for many a social scientist who studies legitimacy by defining legitimacy descriptively as ‘a belief’ in the acceptability and binding nature of a political or social order, and making a distinction between three types of legitimate authority (or sources of legitimacy): charismatic, traditional and rational-legal. The rational-legal authority, prevailing in modern democracies, is characterised by adherence to the requirement of legality, which encompasses the rationality of law. For moral philosophers, legitimacy is a normative concept, a question of providing good reasons to do (or omit doing) something. Political philosophers and jurists tend to view legitimacy through a similar normative lens. A legitimate political system is one in which certain objective criteria are met, such as the separation of powers, absence of corruption, sovereignty of people, and the democratic election of people’s representatives. According to Beetham (1991), a state must fulfil, or appear to fulfil, three criteria to enjoy political legitimacy: (a) using power in accordance with established rules, (b) justifiability of the rules by reference to shared beliefs, and (c) the expressed consent of the people. A legitimate legal system has to do with respecting the values enshrined in the constitutional legal order and the prevailing, rational, fundamental (procedural and substantive) principles governing a certain area of law. If, for example, criminal law or a legislator or a judge complies with these demands, they are deemed legitimate, regardless of what the citizen on a street believes about it. Furthermore, legitimacy is distinguished from legality as requiring something more, some objectively ‘good’ contents of x, as opposed to legality, which is fulfilled when x is done according to the law, irrespective of whether the law is good (just) or not. While adherence to the law and rules is generally important, usually even necessary, for legitimacy (the Latin word legitimus means essentially lawful), it is not a sufficient condition for legitimacy. Classic textbook examples draw on totalitarian regimes, whose agents passed laws ‘legitimating’ their future actions, which, however, violated human rights. Some such lawful actions, directed towards minorities, even enjoyed support from a significant part of the population, as, for example, World War II painfully shows.

In the criminological literature so far, we mostly find issues of legitimacy and trust examined through the procedural justice paradigm, put forward by the American social psychologist Tom Tyler and his colleagues, where the ascription of legitimacy to an agent or institution depends primarily on how this agent or institution treats people. Procedural justice or procedural fairness comprises fairness of decision-making (neutral, unbiased, providing people with the opportunity to have their voice heard) and the quality of interpersonal treatment (treating people fairly and respectfully in the proceedings), and it is the latter of the two components that is said to be the most important, central factor in determining people’s satisfaction, their trust and the perceived legitimacy of the relevant authority (Tyler 2009, 2013). This thesis has been empirically tested several times, mostly examining citizens’ perceptions of the legitimacy of the police.

What is needed at this juncture is a look at the fuller, broader picture that exists. Procedural justice is one part of the legitimacy picture, but not the full picture. There are many important aspects that are still missing or remaining hidden/underexplored, including aspects that may differ from those that seem the most important in the context of trust and perceived legitimacy of law enforcement. It is this lack of examination of some other elements of trust and legitimacy issues in criminal law, criminal policy and criminal justice (courts), and a certain lack of normative and EU-oriented perspectives, that has provided a rationale for this book.

One underexplored aspect concerns the legitimacy of criminal law, of its legislation and application, and criminal policy in general. The legitimacy of criminalisation as a process of passing criminal law legislation (making some human conduct censure-worthy) as well as a process of turning some groups or individuals into ‘criminals’ that may happen in practice (e.g. by treating some groups as criminals) needs to be added to the examination of legitimacy. This aspect has ultimately to do with the legitimacy of state intervention in the individual autonomy, punitive interference with human conduct. Some other insufficiently explored legitimacy and trust issues can be found at the level of judiciary and its interaction, cooperation and communication with the public, parties and other authorities involved, including the challenges to judiciary posed ‘from above’ (by EU legal instruments), which may have legitimacy repercussions for both – judiciary and the EU.

The idea behind this volume was therefore to bring to light these various elements that influence trust and legitimacy in criminal law, policy-making and criminal justice in general – elements that have so far remained rather neglected or at least understudied. Our goal was to expand the current research on legitimacy by addressing also conceptions of legitimacy linked to the content of criminalisation, of criminal-law norms and sanctioning, and by examining some specific court-related issues of legitimacy and trust, through different perspectives and incorporation of some typically European (including EU policy-) aspects of the phenomena.

Structure of This Book

Part I addresses the topic of legitimacy and trust in criminal law and criminal policy. Chapter 2 draws on the knowledge of criminal law philosophy and criminalisation theory to address the question of the legitimacy of criminal law legislation (in the broad sense). It reflects, further, on the link between criminalisation and trust, and proposes that in order to comply with the classic criminal-law principles and to avoid legislating on the basis of mistrust or emotion alone, a principled approach – and in particular a harm-based one – should serve as the main guiding criterion for criminalisation, taking into account also possible cultural variability. Lastly, it considers the application of this approach ‘at the border’ of criminal law, i.e. in the law on violations, reflecting in particular on the recent trends in the penalisation of disorder (nuisance, incivilities, anti-social behaviour), which extend social control by prohibiting many a socially less desirable human conduct, irrespective of whether it is harmful or not.

Chapter 3 reflects on the legitimacy of incivilities regulation through the system of local administrative sanctions in Belgium. Vander Beken and Vandeviver provide a chronological analysis of the introduction and implementation of local administrative sanctions in Belgium from 1999 onwards and the analysis of Belgian newspapers on the issue of administrative sanctions. The authors argue that the concept and the idea to provide local governments with the power to define incivilities and react to them through their own sanctioning system stems from the options provided within the Belgian prevention policy in the 1990s, which was further shaped and developed by constitutional reform. Since then, the system has been implemented in many cities in the Belgium and has been until recently called a success. The authors assert that the possibility of establishing tailor-made rules for local policy-makers has, however, created a patchwork of sanctioning rules and practices throughout the country that have sometimes very little to do with the initial ambition of this measure. Moreover, their media analysis reveals that the system has begun to lose public support. The authors conclude that local administrative sanctions seem to have become a policy on their own and a repressive catch-all to deal with all kinds of societal problems or disorder, casting a shadow over the legitimacy of municipal reactions thereto.

In Chapter 4, Van der Leun and Van der Woude look more closely at another area of progressive criminalisation: migration. Although many regard the Netherlands as a tolerant country when it comes to immigration and a safe haven in terms of crime, the authors note a rather recent emergence of the culture of control and the development of a discourse in which minority groups are increasingly seen and addressed as ‘dangerous others’, comparable to criminals. This, they believe, is part of the country’s broader process of crimmigration – the merging of migration policy and crime control. They situate this process within lingering apprehensions of the Dutch multicultural society and acute issues of immigration, integration, and the over-representation of non-Western ethnic minorities in registered crime statistics, which also appears to have played a role in the declining trust in the criminal justice system. The criminal justice system has reacted by becoming more preventive and increasingly oriented at detecting risky groups of persons as early as possible, and this ‘actuarial justice’ has been accompanied by a great deal of discretionary power in the hands of those who enforce the law. The authors examine whether and to what extent the above-mentioned social changes affect the legitimacy of the criminal policy, observing among other things that the risk that discretionary powers may be carried out (in part) on the basis of generalisations relating to race, ethnicity, religion or nationality rather than on the basis of individual behaviour or objective evidence have so far been rarely recognised.

Chapter 5 moves the debate on the legitimacy of criminal policy to the EU level and inspects the legitimacy of norms, i.e. norms of substantive criminal law and sanction provisions, and the national implementation of these norms from the European Union perspective. It clarifies why the legitimacy of norms is important, regardless of the underlying philosophical foundation of criminal law. Elholm fleshes out a number of elements that provide a basis for the legitimacy of criminal law at EU level, including legality, democracy or anchoring of norms in the population, effectiveness, proportionality, coherence, procedure or the application of norms, a justifiable outcome, trust and the cultural habit. Finally, he discusses the challenges of EU criminal law concerning the requirement of legitimacy.

Part II is dedicated to legitimacy and trust issues relating to criminal justice, more concretely to the judiciary. Here several additional challenges, including specifically European ones, are highlighted in a novel way. Issues of legitimacy of courts, inter-agency cooperation and mutual trust between states are critically as well as creatively examined with an eye on proposing solutions for the future. Chapter 6 first highlights the importance and factors of trust in judiciary, recognising the unsatisfactory state of affairs within the EU. Peršak and Štrus make a case for more objective, normative criteria of legitimacy that are more stable or less dependent on people’s views, and focus on a few significant ‘classic’ factors of legitimacy (and culprits of reduced trust) of the judiciary, such as access to justice, problems with the quality of judicial decisions, communication, judicial independence and impartiality issues, drawing on existing research, secondary empirical data and recent cases of European Commission interventions towards some Member States, which reinforced the need to take a closer look at the national justice systems as a response to concerns regarding judicial legitimacy. Finally, the authors address current European justice-related challenges, particularly challenges of the effectiveness of national justice systems, owing to which the EU Justice Scoreboard has been developed, which will allow a progressively more detailed assessment of the functioning of justice systems in all Member States.

In Chapter 7, Vander Laenen inspects issues of legitimacy and power that play out in court when another agency is involved. She confronts and challenges legitimacy claims of criminal justice organisations when it comes to inter-agency collaboration between justice and health and social care services. The author observes that working across the care-control divide shows considerable differences between professional values and the ultimate goal of the agencies (a care-centred or client-centred orientation versus a public protection agenda) – differences that become particularly apparent in information sharing, with some health and care agencies reluctant to pass on client information to the justice partner. This reluctance, she adds, reflects a deeper value conflict and resulting distrust between agencies. The author proceeds with the analysis of the interaction between justice and health and social care services in inter-agency collaboration, employing a theoretical framework by Bottoms and Tankebe that perceives legitimacy as dialogic and relational in its character – the approach that may help to address some of the barriers in inter-agency collaboration.

In Chapter 8, Erbežnik examines the role of a judge and more concretely the effects of a mutual recognition mechanism, developed in EU criminal law, on the national judge. Mutual recognition is perceived as the ultimate solution to the creation of a common EU area of freedom, security and justice. However, the author notices that its practical application in criminal law shows substantial differences in the understanding of criminal procedure, where such differences and their accommodation (in cross-border cooperation) challenge the classic role of a judge in a modern democracy, which he mainly sees in protecting fundamental rights of the individual against the state in a fair procedure and reflecting...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• 1 Beyond Procedural Justice: Some Neglected Aspects of Legitimacy of Criminal Law, Policy and Justice
• PART I LEGITIMACY AND TRUST IN CRIMINAL LAW AND POLICY: PRINCIPLES AND IMPLEMENTATION
• PART II LEGITIMACY AND TRUST IN THE JUDICIARY: CONTRADICTIONS AND CHALLENGES
• PART III CONCLUDING THOUGHTS
• Index