Wednesday, September 4, 2013

Law Must Have Legitimacy - or at Least the Appearance of it.

Our legal system depends to a great degree on the voluntary compliance of the citizenry. And the voluntary compliance of the citizenry depends to a  great degree on the law's legitimacy - or at least the belief that the law is legitimate.  That belief is based largely on the appearance of legitimacy created by the system's outward manifestations (to borrow a concept from agency/apparent authority law).  Last week, this blog featured a video from Judge Posner talking about judicial decision-making.  In it he says that while judges may decide cases one way or another based on political ideology, they can't say that they do.  So they dress the justifications for their decisions up in fancy constitutional theories.  Those "fancy theories" serve to legitimize the decision.  That is why we teach about Legal Reasoning and Stare Decisis and we refer to quotes like being "a nation of laws, not of men" etc.  Although we know that all these institutional concepts leave enough wiggle room for judicial decision making to be based on ideology, we wink and stammer and continue to talk about law being insulated from politics.

Certainly, the judicial system is a different political animal from a legislature. Everyone expects legislatures to be political. But, so far, we have maintained the all important appearance of legitimacy in the courts. And that has a tremendous impact.

Here is Justice Breyer talking about the importance of legitimacy:

Here is a clip from the movie "The Man of the Year."  The scenario is that the nation is voting for the US President and, for the first time, employing a nationwide electronic voting system designed by a company called Delacroy.  On election day, one of the programmers has discovered a programming glitch that is resulting in the votes being miscounted. She tries to tell someone and gets a talking to from Delacroy's general counsel.
(Note: This is a YouTube clip.  If you find it useful, download it ASAP as it is likely to soon disappear subject to a copyright notice.  We wouldn't want any of that learning going on for free!)

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