9 Utrecht L. Rev. 1 (2013)

handle is hein.journals/utrecht9 and id is 1 raw text is: This article is published in a peer-reviewed section of the Utrecht Law Review
A Reciprocal Turn in Criminal Justice?
Shifting Conceptions of Legitimate Authority
Ferry de Jong*
1. Introduction
In most legal systems, including the Dutch legal system, the judiciary is invested with the authority to
try, on behalf of the community at large, persons suspected of having committed a criminal offence.
The exercise of this authority results in binding judgments that make a claim to legitimacy. The idea
that both the authority ascribed to penal judgments and the public's faith in the legitimacy of these
judgments are dwindling, seems to have become something like a truism over the past few years. The past
decade has seen the rise of a fierce, ongoing controversy in the Netherlands regarding the authority of the
criminal courts and the legitimacy of the criminal justice system as such.' The Netherlands is certainly
not the only country to face disputes on the conditions for the legitimate exercise of authority in criminal
justice. Controversies over legitimate authority seem to haunt many a jurisdiction, and have given rise to
international debates.
Although the takes on the nature and possible causes of actual or supposed deficiencies in the
legitimacy of the exercise of authority in the criminal law, and also the views on the possible solutions for
these deficiencies differ widely, some basic assumptions appear to be shared by most contributors to the
debate. The legitimacy crisis is often defined metaphorically in terms of a 'gap' between criminal courts
and society. And, accordingly, solutions for the crisis usually focus, albeit in different ways, on strategies
for courts to bridge this gap and reinstate the link with society. It is often said that criminal law officials
ought to develop a more 'communicative' attitude, and to be more 'responsive' to different social needs
and expectations that are projected onto them.
It is my impression that the debate on authority and legitimacy in relation to differing aspects of
criminal justice shows two important blind spots. The first one is related to the rather strong fixation on
the image of the gap and the accompanying, alleged necessity of developing a more responsive system
of criminal justice. Virtually all attention is thereby directed toward the 'output' of the system. Much is
being said and written about the ways in which the judge reaches his judgment and, more still, about the
ways he communicates the judgment reached and presents the grounds for the judgment. However, apart
* Assistant Professor, Utrecht University School of Law, Willem Pompe Institute for Criminal Law, Utrecht (the Netherlands); email:
fdejongl@uunl. I thank the two anonymous reviewers for their valuable comments on an earlier draft of this article.
1 See for example: M. Borgers, 'De Communicatieve Strafrechter', 2011 Handelingen van de Nederlandse Juristen-Vereniging, no. 1,
pp. 103-185; G. van den Brink, 'Justice and Credibility. About Bridges built by Judges' 2009 Intern ationa/Journal for Court Administration,
no. 1, pp. 2-17; H. Elifers & J. de Keijser, Different Perspectives, Different Gaps: Does the Public demand a more Responsive Judge?, 2006;
J. de Keijser & H. Elifers (eds.), Het Maatschappeijk Qordeel van de Strafrechter. De Wisseiwerking tussen Rechter en Samenleving, 2004.
See more generally A. Barak, The Judge in a Democracy, 2006.
http://www.utrechtlawreview.org / Volume 9, Issue 1 (January) 2013 / URN:NBN:NL:Ul:10-1-112910 /


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