Socially sensitive court cases are often discussed within the framework of democratic legitimacy. According to critics, problems of democratic legitimacy would not only manifest themselves... Show moreSocially sensitive court cases are often discussed within the framework of democratic legitimacy. According to critics, problems of democratic legitimacy would not only manifest themselves empirically (a lack of societal acceptance), but also normatively (a lack of justification of political power). Against the background of citizens and interest groups aiming to transform a social conflict into a legal one that is suitable for a criminal trial, this paper argues that a third conception of legitimacy is needed: both the common empirical focus on perceived legitimacy, as well as the pure normative focus on objective qualities of powerholders obscure the social dynamics of powerholders making claims to legitimacy and their audiences judging these claims. Drawing on recent theoretical work on legitimacy, this paper argues that democratic legitimacy neither resides in individuals’ minds nor in objective qualities of powerholders. Instead, it will always need to be constructed in a constant dialogue between multiple audiences, who express their problems and conflicts, and powerholders that respond to them within the normative frameworks in which they operate. This dialogic approach to legitimacy thus implies conducting both empirical and normative research. After empirically studying the social practices of claims-making, dialogue and judgment through a media analysis, this paper turns to democratic theory in order to spark our institutional imagination on how to make the responses of courts more democratic, while still accounting for the normative limits in which they operate. Show less
The scholarship on legitimacy of dispute settlement institutions has largely ignored community mediation institutions operating in the global south. This article aims to remedy that gap, through a... Show moreThe scholarship on legitimacy of dispute settlement institutions has largely ignored community mediation institutions operating in the global south. This article aims to remedy that gap, through a case study of community mediation groups in South Sudan, a state emerging from large-scale conflict where formal courts are only marginally able to fulfill their assigned roles and the rule of law needs to be built almost from the ground-up. The article studies both the empirical legitimacy of the community mediation groups and how they relate to the rule of law building project in the country. Is the empirical legitimacy of formal and informal dispute settlement institutions as a zero-sum relationship, where increasing popularity and use of informal dispute settlement institutions detract from the popularity and empirical legitimacy of formal institutions, inhibiting the maturation of the legal system and a rule of law? Or could informal dispute settlement institutions – with proper linkages to the formal system – strengthen formal institutions, both judicial and administrative? These are highly relevant questions for post-conflict states where building a well-functioning legal system is seen as a precondition for sustainable peace and development. Show less
A key aspect of institutions for conflict resolution is their legitimacy. What legitimacy entails, however, is essentially contested and depends in part on whether one takes a legal, normative, or... Show moreA key aspect of institutions for conflict resolution is their legitimacy. What legitimacy entails, however, is essentially contested and depends in part on whether one takes a legal, normative, or social perspective. The current special issue aims to gain a better understanding of legitimacy within the context of institutions for conflict resolution by examining (1) whether and, if so, how studying institutions for conflict resolution through the lens of legitimacy can deepen our understanding of these institutions, and (2) whether and, if so, how studying legitimacy in the specific context of institutions for conflict resolution can enrich our understanding of legitimacy. After introducing the term ‘institutions for conflict resolution’ and detailing current approaches to legitimacy, this Introduction assesses what the potential cross-fertilisation between both concepts may look like. We do so based on the papers included in this special issue, which showcase the diversity of ways in which legitimacy of institutions for conflict resolution may be researched, as they focus on different types of conflicts that take place within different fields of law and involve different kinds of institutions. Finally, we take stock of the insights yielded by the papers included in this issue, and reflect on directions for further research on legitimacy, institutions for conflict resolution, and their cross-fertilisation. Show less
There has been a polarised debate on the desirability of import restrictions to increase corporate accountability for child labour that occurs in global supply chains. Some scholars have indicated... Show moreThere has been a polarised debate on the desirability of import restrictions to increase corporate accountability for child labour that occurs in global supply chains. Some scholars have indicated that states in favour of imposing import restrictions could sidestep this debate relying upon the perceptions that people in the importing market might have. They have based this argument on the case law of the World Trade Organization’s Dispute Settlement Mechanism (WTO DSM). The attitude-behaviour gap has, however, been largely overlooked in their analyses. This behavioural phenomenon provides an explanation as to why there is an inconsistency between what people value or believe and what they actually do. This essay revisits the WTO DSM's case law in order to determine whether such values or beliefs might justify import restrictions. On balance, this essay finds that the WTO DSM has not sufficiently taken the attitude-behaviour gap into account in its interpretation of Article III(4) and Article XX(a) 1994 General Agreement on Tariffs and Trade (GATT). Show less
In this contribution we describe how efforts to solve the problems of litigants, suspects and victims are organized in the Dutch administrative and criminal justice systems. Contrary to the problem... Show moreIn this contribution we describe how efforts to solve the problems of litigants, suspects and victims are organized in the Dutch administrative and criminal justice systems. Contrary to the problem-solving courts that we know from the United States and Australia, problem-solving justice in the Netherlands is for a large part in the hands of administrative authorities and a variety of agencies in the criminal justice organisation. The possibilities for judges to actually solve litigants’ problems are few, at least in administrative and criminal law. This is related to a lack of expertise and training, but also to time pressure and a lack of involvement of non-judicial expertise in the courts. With regard to the criminal justice system, there is a resistance to a more extensive intervention of the judges in problem-solving initiatives, as this would be at odds with their impartiality and independence. The results of several empirical studies show that the Dutch approach can be quite successful if it comes to ‘keeping cases out of court’. To a certain extent, this approach helps solve concrete problems of parties and of persons situated in a criminal law context. On the negative side, the position of interested parties in administrative decision-making is quite weak, and the same is true for suspects in the criminal justice domain. Show less
