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Albin Iglicar1 DANUBE j Law and Economics Review 4 (2011) 1 THE SOCIAL PERCEPTION OF JUDICIAL DECISIONS Albin Iglicˇar1 Abstract In addition to the main social function of the judiciary (solving conflicts), there are other important social tasks of the judiciary that can be summarised as solving conflicts, protecting the interests (rights) of individuals and general (state) interests, social control, the judiciary in the function of a homeostatic mechanism and achieving system legitimacy and control of the executive branch of power. The public’s perception of the judiciary and its confidence in the judicial system depends first and foremost on the public’s notions of the tasks and competencies of the judicial authorities as they are formed in public opinion. These notions and the related perception of the social functions of the judiciary are to a small extent formed on the basis of the individual personal experiences of participants in judicial proceedings and the experiences of others that these impart to their social environment. To a greater extent, the social perception and public opinion of the work of the courts depends on media reports, the appearances of politicians and the public appearances of representatives of the judiciary. Keywords Public, Judicial Decisions, System Theory, Confidence in the Judiciary I. Introduction The judiciary exercises two, sometimes contradictory, functions in society. Its task is to protect – in the process of settling conflicts – the interests of both society and/or the state and the individual; this is protection of actual or proclaimed general interests as interests of the individual, as long as all these interests are legally protected by so-called public and private rights. The said interests must be encompassed by general legal norms and/or acts, as care for legality and the solving conflicts between legal subjects is the basic task of judicial institutions. Under legality in this context, we stress mainly the guaranteeing and enforcing of such behaviour of citizens and their organizations which is required by legal norms. II. The Social Functions of the Judiciary The concrete image of judicial institutions in a global society depends on a number of circumstances. The most important of these are the society’s class structure, the type of political regime, a greater or lesser democratic tradition, the general level of culture and civilisation, the segmentation and developmental level of the legal system, etc. 1University of Ljubljana, Faculty of Law, Poljanski nasip 2, SI-1000 Ljubljana, Slovenia. E-mail: [email protected]. 2 Albin Ilgicˇar j The Social Perception of Judicial Decisions Researchers of the judiciary find that the regulation of the judiciary and legal proceedings do not depend so much on the social and economic system of a state as they do on the structure of the legal system. Formal decision-making procedures did not differ substan- tially in a socialist and a capitalist country2, though there can be significant differences in the legal proceedings of two legal systems of two countries with the same capitalist social and economic system3. There are fundamental differences between the European continental and the common-law legal system in how judiciary and legal proceedings are regulated (Damasˇka, 2008, p. 7). The notion of the judiciary’s organisation is further impacted by the hierarchical or parity model of organisation of state authorities. The first conditions the judiciary in continental Europe and the latter in England and in countries that assumed the first or latter model. In the first model, the role of a specially educated professional judge is important, while in the second there is a high level of lay implementers of the judicial branch of power (justices of the peace, conventional jury). In the first, the judiciary is more hierarchically organised, while in the second it is decentralised with the all-encompassing jurisdictions of the first instance courts (Damasˇka, 2008, p. 48). In the first case, the decision-making process is distinctively graduated and legally regulated, while in the second it focuses on the main hearing with more procedural discretion and the judge playing the deciding role in determining the legal norms (Barak, 2006)4. The basic social function of the judiciary is to solve conflicts between legal subjects. On the one hand, legal institutions are the most complex and expensive mechanism for implementing this social activity, but on the other hand, the judiciary ensures rationality and predictability in solving conflicts. With such an operation, the judiciary generates re- lative stability and security in social relationships. Each judicial decision prevents anarchy when deliberating between established solutions and social changes5. The conflict-solving function is especially emphasised in a state that allows extensive activities of the civil society and a broad field of contractual freedom (a reactive state) while in the so-called activist state, the implementation of state policy is more in focus. This is why the contra- dictory or accusatory model of (criminal) proceedings is at the fore of the first case and the inquisitor model is at the fore of the second. In a reactive state, the norms of procedural law are more important, while in an activist state the norms of material law, etc. (Damasˇka, 2008). In a constitutional system with a division of power, the judiciary also prevents “. the tyranny of civil servants or the specific and particular interests of those with access to power.” (Vehovar, 2001, p. 96). With the practical merger of the legislative and executive branches of power6, the independence and autonomy of the judicial branch of power is 2For example, judicial decisions in the former Socialist Federative Republic of Yugoslavia and the Federal Republic of Germany. 3For example, judicial decisions in France and Great Britain. 4Example: “Indeed, judges created the common law.” (Barak, 2006, p. 10). 5Example: “The judge must balance the need for change with the need for stability . Stability without change is degeneration. Change without stability is anarchy.” (Barak, 2006, p. 11). 6In a parliamentary system, the legislative and executive branches of power come from the same political basis, so there is only a division of functions between them. In contemporary society, there are also a number of bodies DANUBE j Law and Economics Review 4 (2011) 3 gaining in importance. In a polyarchic political system7, the judiciary enables the planned and future-oriented activity of subjects, as it provides the required stability and strategic operation of the individual players8. Following the principle of the rule of law, it thus acquires the society’s confidence and legitimacy, or so-called social capital. On the other hand, this requires a high level of responsibility from the judicial system and for it to be responsive to the requirements of its social environment (Pavcˇnik, 2004, p. 222). In continental legal proceedings, the solution to a conflict is sought on the basis of preset general and abstract legal norms and relevant facts. There is a clear division of participants into those who decide and those for whom the decision is intended (Luhmann, 1992, 2004). The fundamental social function of legal proceedings is not to search for the truth – that is the task of science – but to solve a conflict. In society, the solving of the conflict is accepted as legitimate precisely because it was achieved via an autonomous and yet institutional legal proceeding. In the Anglo-Saxon system or the laissez-faire ideology, the judge has a more passive role, while in the continental legal system and the ideology of an intervening state, judicial decisions require a more active judge (Damasˇka, 2008, p. 176). By institutionalising conflicts, we specify and generalise them. In evolutionary terms regarding the global society, the legal institutionalisation of conflict-solving proceedings represents the framework for admissible conflicts. Settling and resolving conflicts through legal proceedings is based on a differentiation of the roles that appear in the judicial system and a mutual recognition of these roles. Solutions are searched for on the basis of legal norms and facts that are important for the utilisation of the pre-set norms. This is why social scientists establish that the only information that is relevant for a legal proceeding is foreseen in the decision making programme (Luhmann, 1992). In so-called civilised societies, decision making on the basis of selected information and general and abstract legal norms has replaced the self-help and self-defence that were characteristic of so-called primitive societies. This is why the participants in legal proceedings predominantly also accept unfavourable decisions. This is due to the specific system of social relationships that are shaped in relation to the legal proceedings. In addition to the relations of opposition and conflict relations, the players in these proceedings also establish characteristic conformational relations (adaptations, accommodations), especially in the shape of tolerance, reconciliation and compromises. Relationships of compromise especially appear during a longer period of that are difficult to classify into one of the three conventional branches of power, such as the Constitutional Court, Election Committee, the Court of Auditors, various agencies, etc. Alongside the horizontal, there is also a vertical division of power between the central state and the local communities, etc. (Sˇturm, 1997).
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