Legitimacy and justice - two terms that should not be mixed up

Legitimacy (in the sense of lawfulness) is not the same thing as justice (in the sense of rightfulness). Something (a judgement, behaviour) can be legitimate without being right, and something can be right without being legitimate. In ideal situations there is none or little discrepancy between legitimacy and justice. Unfortunately these ideal situations do not exist. Codes can never include all practical situations and states place legitimacy higher on the hierarchical ladder than justice. Legitimacy is assessed by judges. Justice is assessed by the public.

Proposition: when the resources of the institutional right are exhausted and there is, however, talk of legitimacy but not of justice, the citizen has the right to present his problem to the public for assessment.

Above proposition is indeed subjective, because the opinion of the citizen that there is no justice is not an objective perception, but doesn't that also apply to institutional law? And if not, why are there higher courts that can reconsider the judgement of lower courts? Why isn't the judgement of a Dutch judge not the same as the judgement of an American or Iranian judge?

In a civil process, for example between a bank and a citizen, the legal possibilities have been exhausted. The court has ruled against him, the bank has been put in the right, on the basis of legitimacy. However, the bank has behaved carelessly in its relation with this citizen, as a result of which the citizen has suffered material and immaterial damages, whereas the court has insufficiently taken into account the fact that in these conflicts banks are professionals, whereas most citizens are amateurs, whereas banks can use the most expensive lawyers, contrary to the average citizen. Most of the judges do not take this inequality before the law into account in their sentences. Anyway, the legal remedies of the citizen are exhausted and there was legitimacy, but certainly no justice.

According to my proposition (see above) the citizen can now present the matter to the public, by means of publication of the problem. He can do that by means of the Internet, or by means of other media. The public can react to the problem, for example by discontinuation of doing business with this bank if one finds that the citizen has been treated wrongfully, or contrary, to continue doing business with this bank because one finds that the citizen is wrong.

When the bank at some stage realises that the judgement of the public is detrimental for the bank, the bank can try to urge the citizen to stop further publication and other actions. That could be done by means of legal remedies, such as a lawsuit in which the citizen is required to stop or modify the publication, but our experience learns that judges will not assign such a requirement when the publication does not deviate from the truth and when the publication ventilates a clear opinion. You can publish anything you want about a person or an organisation, but you can not mention untruths. The bank however can also try to reach an extrajudicial agreement with the citizen, for example by compensating the citizen for the material and immaterial damages he has suffered, in exchange for which the citizen stops or removes his publications. In that case, at least in the eyes of the citizen, justice has been done.

It is possible that aforesaid incident creates a precedent, as a result of which the bank is obliged to reconsider its policy so that in the future less (lawful yet wrongful) negligence will take place. In that case the extrajudicial actions of the citizen have conducted the fact that in this particular bank the discrepancy between unlawfulness and injustice has become smaller.
Unfortunately this system does not work good, or not at all, when the antagonist of the citizen is a monopolistic organisation. For this reason it is a giood thing that more and more markets are liberalised and the number of monopolists is limited.

Proposition: justice increases as organisations are dependent on the public.

Banks are, at least to a great extent, dependent on their customers. That also applies to debt-collection agencies, bailiffs and credit suppliers, because they also have competitors in their markets. A company that wants money from its debtors will hesitate to use a debt-collection agency that has become the talk of the town, and people will hesitate to lend money from a credit supplier who treats his customers legitimate but wrong, certainly when one knows that there are competitors with highhigher standards regarding justice.

Conclusion: a society becomes more just as citizens publish the injustices that happen to them.

Jack Vanderwyk, April 2006