Trust in transition: Legitimacy of criminal justice in transitional societies

Abstract

The criminal justice system is deemed a focal area in the transition to democracy, and in the process of democratization of institutions and civil society. Police and courts are seen as the vanguard of democratic change. It is a significant characteristic of such claims that the legitimacy of criminal justice institutions–the police and the courts–is seen as decisive in securing legitimacy for the transition to democracy, and for democratic government, and thus the contribution of these institutions to the political stability in the transitional environment is of major importance. Police and justice reform is turned into a ˵problem of trust˶ as Goldsmith noted in 2005. In which ways does the transition to democracy impact on the legitimacy of criminal justice institutions, and how do these processes affect other institutions in the transitional process? Are there typical trajectories of delegitimization and relegitimization? Which institutional and civil society changes do mostly affect the confidence and trust in and legitimacy of criminal justice? This paper addresses these questions in four steps, building on a sample of 78 transitional countries which experienced transitions to democracy between 1974 and 2010. First, trajectories of trust in police and justice after the transition are identified for up to more than 15 post-transition years. Second, cohorts of transitional countries from Europe and the Americas are compared to mature democracies in their regions. Third, contextual factors conducive to the development of trust in police and justice like institutional reforms and empowerment of civil society are analyzed. Finally, the impact of conflict and internal violence as well as of transitional justice on trust in and legitimacy of criminal justice are explored. The results show only incremental changes in trust in police and justice, which in addition are not consistently to the better, across a post–transition period up to 15 years. Transitional countries do not provide an environment in which such trust can flourish, and they do not catch up with mature democracies. Trust levels consistently remain below the levels of mature democracies, as do indicators of rule of law, empowerment of civil society and support of democracy. However, most of the reforms and indicators of rule of law, stable democratic institutions, and balance between civil society and state institutions do not contribute to generating trust in police as has been widely assumed. Finally, while in a post–conflict situation citizens are more willing to grant legitimacy to police and justice, transitional justice procedures send ambiguous messages and do not enhance trust in police and justice. The results pose critical questions to widely held assumptions about the positive impact of rule of law and general capacity building on police and justice legitimacy in transitional and post-conflict societies. They point towards two routes of improving police legitimacy. First, efficiency in terms of combating crime, i.e., being competent in their everyday tasks, seems to be decisive for establishing a trustworthy police. Second, control of corruption, i.e., improving fairness and equality in decision making seems to be another core requirement. The results suggest a focus on police and justice reform and on the mundane delivery of security and justice in the everyday lives of citizens rather than implementing a plethora of programs of institutional capacity building across the board.