judges – Trust Talk

Exploring Trust in Law: a Multidisciplinary Perspective

March 23, 2023 by admin

GovTrust, judges, law, legal certainty, Unified Patent Court, UPC

Our guest on this 65th episode of the TrustTalk podcast is Esther van Zimmeren, Professor of Intellectual Property Law & Governance at the Faculty of Law of the University of Antwerp and coordinator of the Centre of Excellence GOVTRUST.

The connection between trust and the legal profession is not a simple one. In legal literature, the concept of trust typically pertains to confidence in (legal) institutions, such as courts, judges, or “the legal system.” Legitimacy is often used as a synonym for trust, despite its unclear relationship with trust in broader literature from other disciplines. The terms trust, rule of law, and legitimacy are used interchangeably without specifying their drivers or consequences, leading to a lack of clarity in their practical implications.

Esther discusses the challenges of creating trust in contractual arrangements, particularly in complex IP licensing and patent pool agreements. They explore the balance between creating clarity and legal certainty while leaving room for innovation and open communication to build trust. She suggests that clear milestones can be imposed at the beginning of the contract, but renegotiation and mediation can be used when more space is needed. The use of alternative dispute resolution, such as mediation, can help to maintain good long-term relationships and build trust. She highlights the importance of considering the context in determining the effectiveness of rules and contracts. They suggest that differences in outcomes may be related to variations in empirical research and theoretical work, as well as factors such as the type of collaboration, contract, actors involved, and geographical scope.

Esther van Zimmeren believes that legitimacy, fairness, and procedural justice are important considerations for trust in an organization or institution, especially in a regulatory governance context. She talks about the Unified Patent Court in Europe, which has promising rules for fairness and impartiality but faces challenges in terms of the independence of its technically qualified judges who work part-time for patent firms. She emphasizes the need to look at specific examples rather than general concepts when discussing trust in the legal system.

How the legal profession uses the word trust

I think that with legal sciences, increasingly we’re also using methods of other sciences and we’re learning from conceptualizations and different methods that are being used also in the social sciences. So you see that lawyers are also interested in these concepts. But if you look back at older literature, that people use trust in a very generic manner, not really conceptualizing or using clear definitions. So you often find the word trust as an important concept, but it’s has no specific meaning or in some other cases there are concepts like mutual trust which are developed by the Court of Justice, but in a very isolated manner. So there seems to be some kind of disconnect or some isolation of how lawyers, practicing lawyers, but also academics are using the word trust.

Trust in courts

I’ve written some articles with colleagues Patricia Popelier and others about trust in courts, and what does that then mean? Again, also there you see a kind of mix up in a lot of the literature between trust and legitimacy that I already referred to. And also often it’s not so clear who is the trustor who is the trustee, what is the relationship there, are we looking at trust of citizens in courts or are we looking at trust of companies in such systems? Then also often the term judicial system is used in a broad way, whereas I actually think and this is also coming from the broader trust literature, is that this relationship between interpersonal trust and inter-organizational trust is very helpful to understand better whether we trust a certain court, because often we don’t really know as a citizen what the court is doing, we’re not looking into the caseload, we’re not making a very detailed analysis.

Publications Esther van ZImmeren

For an overview of the publications by Esther van Zimmeren, use this link

Transcript of the interview with Esther van Zimmeren

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Subtitles on the YouTube video of the interview

For those that prefer to listen to the interview and at the same time read the subtitles we added the interview to the TrustTalk YouTube channel,

Do Judges Seize Power?

April 2, 2021 by admin

Law

impartiality, judges, populism, supreme court, trias politica, Urgenda

In an interview with the former President of The Netherlands’ Supreme Court (“Hoge Raad“), Geert Corstens, we talk about trust in the judiciary. What efforts do judges undertake to remain the trust, people have in courts and in judges? Should judges come out publicly more often or should they restrain themselves to appear in the public limelight? He talks about the new book he wrote with his colleague Reidert Kuiper “De rechter grijpt de macht” (“The Judges Seizes Power”), about populism, the importance of impartiality, and whether we have a “diskastocracy” in The Netherlands, as a populist politician once suggested, about the “Urgenda” case and a famous case on euthanasia in the 1980s when courts were asked to step in where politics failed to come up with legislation.

A judge has to be modest and courageous

On his book “De rechter grijpt de macht”:

“The subtitle is “And Other Misunderstandings About the Rule of Law”. And I am of the opinion that judges have to be both modest on the one hand and courageous on the other hand. Modest, we have to be modest, because it is not the job of the courts to decide on organizational contours of the state or to shape society. That’s not our task. That’s up to politicians. But the judge has to be courageous as well. So the first element was modesty. But in the meantime, to be courageous, that means that when the executive does not obey the law, the judge has to be clear and has to render a judgment that states that the executive does not obey the law. Or, when the legislature has defined a law that is contrary to an international treaty, it is his task or her task, to declare that such a law may not be applied.”

About the three branches of government::

“We have three branches of government, the legislature, the executive and the judiciary. They must be kept in balance, in order to prevent abuse of power. As in many organizations, social organizations, you have an executive boss and the supervisory board, on the other hand. And it’s important that those bodies can control each other, can check each other, can review. And it’s important that neither of these three powers in the state will exert abusive power. The idea is that citizens behold enough freedom. That’s the underlying idea. And yes, the judge has, as my former colleague of the Israel Supreme Court, Aharon Barak, once said, the judge has “sword nor purse”. The legislative branch of government and the executive can please people by giving them financial means and can enforce its measures by violence, if necessary. The judge has only the trust of people in its institution and in its functioning.”

The podcast interview can be found on this website (under “podcasts” above) and on https://podfollow.com/trusttalk and all major podcast platforms, like e.g. Apple Podcasts, Stitcher, Google Podcasts, etc.

Here is the transcript of the interview:

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_{All podcasts are being audio-edited by Job Dijk of Steigerstudios in Veenendaal, The Netherlands}