Judicial Legitimacy: the Public Perception of the Courts As the Least Political Branch

John N. Drobak (Washington University)

Abstract: This article is premised on the belief that people co-exist in modern society because they willingly get along with each other and abide by the laws governing social and economic interaction, much more so than as a result of the enforcement of laws. As Rousseau said, “It is in the end the law that is written in the hearts of the people that count.” The article explains the role played by courts in advancing cooperative norms and considers the influence of the judiciary in creating norms that lead people to willingly comply with the law. In order to influence cooperative behavior, the judiciary must be perceived by the public as a legitimate branch of government. In examining judicial legitimacy, the article will contrast the segment of the public that knows little and cares less about the workings of courts with educated court observers. For the general population, the article will emphasize the importance of secondary and college education, as well as symbols and rituals, that show the courts to be a non-political branch of government. For educated observers, legitimacy also depends on the self-restraint of the courts, the respect shown by the other branches of government, and the quality of court decisions and opinions. The article applies theories of legitimacy from political science and psychology and uses survey data of public opinion of courts in its analysis of how the judicial system achieves a public perception of legitimacy.

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