Quality of Judicial Organisation and checks and balances

Abstract

This PhD project explores the possibility of creating a normative way of assessing quality of the judicial organisation by arguing that legitimacy is related to the functioning of the organisation. This further leads to the idea that the judiciary can be held constitutionally accountable for its organisation or lack thereof. This is a comparative thesis looking at the judicial organisations and the constitutional settings of France and the Netherlands. The issue of quantifying and measuring quality in the judicial organisation poses an interesting challenge. On the one hand, it has a special status within the separation of powers to uphold the law. In a constitutional state (rechtsstaat) based on a democracy, the checks and balances have been set out to protect judicial independence whilst finding legally conventional ways to hold members of the judiciary to account for the exercise of their power. For the last two centuries, the system has held the three powers in balance in order to protect people from arbitrary abuse of power. Legality has always been the basis upon which public organisations make decisions in a democracy. The same is said for the judiciary. So long as judges followed rules of procedure, no matter how long it took, and how easily manipulated (by lawyers), they were judges were acting within the bounds of legality (due process). This was (and still is) valid in the days of corrupt and partial officials, or of the days of bureaucracy, when there were so many rules that the protection that due process should have afforded was failing and red tape hid the actions of state officials. On the other hand, the judiciary is an organisation with limited resources to fulfil their tasks. Given the fact that their organisation has been ignored due to judicial independence, judiciaries throughout Europe have had to cope with growing caseloads and no organisational solution. Today, therefore, there is a new organisational enemy: ineffectiveness through failure of the organisation to act efficiently. Resources and use thereof are not the only issue in policy today: there is also an issue of timeliness. In the sphere in which the judiciary acts, this is essential as their judgments must be relevant at the time that they are issued. If judgments do not give solutions to problems at the time they are needed, they lack legitimacy. If judgments lack legitimacy, then the judiciary begins to lose the trust of the public. From this thesis, it would appear that quality theories support the function of justice and provide transparent methods for organisation. Furthermore, as regards the organisation, quality methods appear to have given the judiciary in both countries the possibility to examine in closer detail the elements involved in the delivery of effective justice.