NCJ Number
186237
Journal
Judicial Officers' Bulletin Volume: 12 Issue: 6 Dated: July 2000 Pages: 41-48
Date Published
July 2000
Length
5 pages
Annotation
This analysis of judicial legitimacy in Australia focuses on its differences with political legitimacy, its main features, and the means by which it can be both undermined and maintained.
Abstract
Political legitimacy is the foundation of community acceptance of authority and sustains general obedience to laws, including ones without universal approval. Political legitimacy sustains governmental power; the need for such legitimacy sets the limits of governmental authority. Similarly, the acceptance of judicial decisions requires their legitimacy. Judicial power rests on trust. The laws are the direct source of a judge’s powers. Judges have ample scope for using wisdom and understanding without compromising their integrity or impartiality, but judicial discretion has limits. Impartiality is a condition on which judges’ authority rests. Judicial review is the area of judicial activity that produces the most questioning of judicial legitimacy. The power to declare invalid an expression of the will of a democratically elected legislature involves a responsibility of a special kind. Fidelity and not bravery or creativity is the quality that sustains judicial legitimacy. Courts need to display legitimacy and fairness constantly and must continue to respect the terms of the trust upon which they exercise their authority. 10 references