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States are free, yet everywhere live under international courts and tribunals (ICs). As they proliferate and gain power across ever more domains, ICs become targets of resistance and criticism that they are illegitimate authorities. What reasons might a state have to defer to an IC's judgment or interpretation, even when the state regards it as mistaken, and even when it conflicts with the interests and objectives of government? Section I sketches the multiple tasks of ICs, in complex interdependence with other actors. Their core task is to adjudicate disputes through interpretation and application of international law by legal methods. This may also contribute indirectly to a range of further tasks. Section II addresses some aspects of the relation between normative legitimacy of ICs and descriptive legitimacy - actors' beliefs therein. Section III shows how a wide range of legitimacy challenges concern ways ICs fail to carry out their tasks. This account does not seek to provide substantive arguments or seek to show that all such criticisms are correct. The aims are rather to make many such criticisms comprehensible as legitimacy concerns, to provide a rationale for popular taxonomies of legitimacy criticisms, and to indicate which premises and arguments are required for such criticisms to be sound.

Legitimacy and International Courts examines the underpinnings of legitimacy, or the justification of the authority, of international courts and tribunals. It brings together an esteemed group of authors, noted for both their expertise in individual courts, tribunals, or other adjudicatory bodies, and their work on legitimacy, effectiveness, and governance more broadly, to consider the legitimacy of international courts from a comparative perspective. Authors explore what strengthens and weakens the legitimacy of various different international courts, while also considering broader theories of international court legitimacy. Some chapters highlight the sociological or normative legitimacy of specific courts or tribunals, while others address cross-cutting issues such as representation, democracy, independence and effectiveness. ; https://digitalcommons.law.uidaho.edu/facw_bkcntri/1004/thumbnail.jpg

This Article seeks to comprehensively articulate the meaning, role, and importance of truth in courts by drawing upon empirical and theoretical scholarship from philosophy, economics, social science, psychology, political science, ethics, and jurisprudence, in addition to more traditional legal sources such as United States Supreme Court decisions. It is frequently said that trials are a search for truth. But as insiders to the judicial system know, if this is so, then it is a meaning of truth that differs from what truth means in any other context. And exposing this definitional dissonance, in turn exposes that the legitimacy of the courts rests on an eroding foundation, as courts increasingly are not doing what the community believes courts are doing. This Article argues that when courts do not account for lay perceptions of courts as institutions that primarily value accuracy in decision making, courts jeopardize the legitimacy of courts as public institutions.

What is an international crisis of legitimacy? And how does one resolve such crises? This article addresses these conceptual issues, laying the theoretical foundations for the special issue as a whole. An actor or institution experiences a crisis of legitimacy, it is argued, when the level of social recognition that its identity, interests, practices, norms, or procedures are rightful declines to the point where it must either adapt (by reconstituting or recalibrating the social bases of its legitimacy, or by investing more heavily in material practices of coercion or bribery) or face disempowerment. International crises of legitimacy can be resolved only through recalibration, which necessarily involves the communicative reconciliation of the actor's or institution's social identity, interests, practices, norms, or procedures, with the normative expectations of other actors within its realm of political action.

What is an international crisis of legitimacy? And how does one resolve such crises? This article addresses these conceptual issues, laying the theoretical foundations for the special issue as a whole. An actor or institution experiences a crisis of legitimacy, it is argued, when the level of social recognition that its identity, interests, practices, norms, or procedures are rightful declines to the point where it must either adapt (by reconstituting or recalibrating the social bases of its legitimacy, or by investing more heavily in material practices of coercion or bribery) or face disempowerment. International crises of legitimacy can be resolved only through recalibration, which necessarily involves the communicative reconciliation of the actor's or institution's social identity, interests, practices, norms, or procedures, with the normative expectations of other actors within its realm of political action.

While the International Criminal Court (icc) strives for justice for atrocity crimes throughout the world, increasingly, its legitimacy is undermined: powerful states refuse to join, African states prepare to leave, victims do not feel their needs for justice are met. This article argues that this is due to contradicting assumptions and too many objectives attached to the expectations of international criminal justice, which pull and push what the criminal trial is supposed to do in too many directions, undermining what it can do, raising too high expectations, and leading to disappointment. The article analyses the critique as rooted in a misunderstanding of what 'justice' is, what a criminal trial can do, and how inherently political international criminal justice is and only can be. It concludes with some observations on what this entails for strengthening the legitimacy of the icc by matching expectations to what it can and cannot do.

ABSTRACT The interdependence between governance and legitimacy of the courts is a subject that has not been much studied by scholars, especially those from the fields of public administration and organizational studies. Taking into account the importance of these topics for the functioning of these organizations, the purpose of this essay is twofold: to enrich the debate on the contribution of good governance to the legitimacy of courts, and to encourage researchers to address these themes in greater depth. To this end, the main literature on governance and legitimacy of courts is analyzed. Theoretical approaches contribute to the discussion of the functioning of courts, which are highly institutionalized organizations that depend heavily on a presumption of legitimacy. Ensuring this legitimacy has been one of the challenges for these organizations, which are required to adopt governance models that contribute to better management and performance. We argue that there are managerial and substantive implications for society, since the governance and legitimacy of courts can affect the system of justice. We put forward some propositions on the influence of judicial governance on the legitimacy of the justice system and on the perception of legitimacy of the courts. These propositions provide insights for a research agenda on these issues.

Digitised version produced by the EUI Library and made available online in 2020.

The Spanish legislative burdens the Constitutional Court with the task to prevent Catalonia from pursuing independence. To use the Constitutional Court as the main barricade against any attempt at starting the independence process does tremendous damage to the Court itself as it undermines its perception as neutral arbiter and, thereby, its legitimation.

The conduct of international affairs is subject to three kinds of normative standards. The first of these is prudence or rational self-interest, and its most common manifestation in international affairs involves reference to a state's national interest as a basis for defending or critiquing its international conduct. Justice provides a second metric for assessing the international conduct of states, and sometimes other actors, and a set of normative concepts including freedom, equality and fairness with which to argue for or against particular acts or policies. Law, including both international law and the foreign law of particular states, provides the third normative framework commonly employed by those engaged in or otherwise concerned with international affairs. Thus an international act, such as one state's invasion of another, can be criticized as imprudent, and/or as unjust and/or as illegal. As normative claims, each of these criticisms purports to give the invading state a reason to desist, and at least in the case of the second and third criticisms, entails that the invaded state and perhaps other actors (for example, other states) have a reason to treat the invading state in ways they would not otherwise be justified in doing. The focus of this chapter is on how international law performs this function; that is, it aims to explain why and when the fact that an act would violate international law in itself provides an actor with a reason, indeed a moral obligation, not to perform it. The answer, I shall argue, is that international law does so if and only if it is legitimate.

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman's dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic President and Congress would be willing to limit themselves to using court reform as a means of repudiating the Republican Party's constitutional gains but not as a means of pursuing (in fact or in appearance) their own comprehensive reform agenda. The question that this analysis leaves hanging is whether this pathway remains satisfactory when concerns aside from democratic legitimacy are factored into the equation, such as a concern with the protection of certain fundamental rights, or with the possibility of public and institutional backlash against court-packing.

Under the complex circumstances and the limited capacity in which the International Criminal Court (ICC) operates, the role of its prosecutor has been challenging. The ICC prosecutor cannot pursue all situations for investigation, and cases for prosecution. She has to be selective. Moreover, the individuals and the crimes over which the Court exercises its jurisdiction, and the present circumstances in which it operates raise political sensitivities that might undermine the ability of the Court to deliver its justice effectively. The ICC prosecutor faces a complex dilemma in negotiating a relationship between fealty to the law and the impact and possible benefits of political exigencies in delivering justice. It also raises the problem of the role of political considerations within the decision-making process. The exercise of discretion lies at the heart of these challenges, as the ICC's Statute allows the prosecutor to exercise significant discretion. This thesis will explore and analyse the discretionary power of the ICC prosecutor. It situates the development of the office historically by referring to the experiences of the War Crimes Tribunals after World War II and the two United Nations Tribunals of the 1990's. Against this background, it examines the scope of discretion and the way the Prosecutor has exercised it. This thesis will suggest that there has been a tendency to overlook the necessity of distinguishing between various senses of discretion open to the prosecutor to exercise. In exploring the scope of discretion, the thesis will argue that there is wider range of discretion with different senses, available to the Prosecutor and that has been exercised by her, when applying legal thresholds. In assessing these legal thresholds, the focus will be on 'sufficient gravity' and 'the interests of justice'. The thesis will suggest that the indeterminacy of the legal thresholds, such as 'sufficient gravity' is the space, which, in effect, allows decision-makers to exercise a wide range of discretion. The thesis refers to this discourse as legal interpretative discretion. This is to be distinguished from prosecutorial discretion, which is a different concept and allows decision-makers to consider extra-legal considerations, as the case with the term 'interests of justice '. An implication of the interpretation of the terms like 'sufficient gravity', is that the prosecutor can appear to possess almost unlimited power. In exploring the relationship between the two types of discretion the thesis will root the analysis within a close reading of examples of the investigations and prosecutions, and the scholarly literature. The thesis also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions. The thesis engages with the repeated statements by prosecutors, which have denied the use of discretion and asserted a fealty to strict legalism. It suggests that beneath these statements lie a resource, discretion, which helps not hinders international criminal justice.

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?

This article reviews the role of lay judges in labor courts in five European Union countries (Germany, France, Great Britain, Ireland and Sweden). We find that a very high proportion of judgments are unanimous in all five countries, despite imputed differences of interest between the employee, employer and professional judges and significant variations in the way that lay judges are selected, trained and deployed. This suggests that one key contribution of lay judges is to provide legitimacy to the decision making process. Three different facets of legitimacy are explored, but further empirical research is needed to establish why decisions are generally unanimous and how legitimacy might be more systematically compared cross-nationally.

In memory of Thomas Franck International lawyers have been less interested in the concept of legitimacy than political scientists or international-relations scholars. Indeed, Thomas Franck lamented in 1987 that international lawyers positively avoided the topic. The traditional approach was for lawyers to use the notions of legality and legitimacy more or less interchangeably; a legal context was assumed to confer automatically some type of legitimacy on the outcome of deliberations. It is striking that critiques of the substance of international law, such as those from the developing world or those drawing on critical and feminist theories, do not usually resort to the language of legitimacy to emphasize international law's inadequacies. Rather, they typically propose the creation of more law to remedy the deficiencies of the international legal system. The North American Treaty Organization's (NATO's) bombing of Serbia and Kosovo in 1999 sparked an exploration of the differences between legality and legitimacy by international lawyers. The attack by NATO was certainly prima facie illegal: it was conducted without the endorsement of the United Nations (UN) Security Council and it was not an obvious use of the right to self-defense recognized in the UN Charter. Both scholars and politicians elaborated the idea of the legitimacy of the bombing � in the face of a humanitarian emergency caused by the Serbian government � to provide a contrast to what they saw as the morally inadequate or unattractive legal response.