Popular Notions of Legitimacy and Trust vis-à-vis Public Institutions across Europe and Latin America

Contemporary notions of legitimacy acknowledge the need for authority to rest with unelected institutions, usually to accommodate the realities of the modern state whose functions have grown in both scope and sophistication. Populist movements have argued against such claims, placing legitimacy almost exclusively with the electoral validation of the people. Institutions lacking popular oversight have been addressed by populist governments, usually at the cost of their independence. This has led to some tension between such institutions, like the judiciary and populist legislatures. However, recent empirical research conducted in Hungary and Poland appear to suggest that the people not only see institutions like the Courts as legitimate but more importantly, see their legitimacy as a result of expertise. This has significant implications on how legitimacy is granted to unelected institutions and how the same may be somewhat immune to even significant shifts in popular consciousness.

The Swedish state does not embody the traditional tripartite separation of powers ideal. The Courts are viewed as forming part of the executive branch rather than being an independent third branch of government. Judges in Sweden are appointed to permanent positions by the government. The Independent Judges‘ Proposal Board puts forward recommendations for all judicial appointments. Moves to push the judiciary towards the executive are causes for concern in Hungary and Poland, yet the same concerns are not shared in relation to Sweden where the judiciary has traditionally been considered part of the executive. This paper draws on data collected from qualitative focus groups conducted in Stockholm and Malmö in October 2021 and explores perceptions of legitimacy held by the public towards the judicial branch. This paper will also explore perceptions of legitimacy of other independent institutions in Sweden: the Parliamentary Ombudsman (JO) and the Council for Legislation (Lagrådet).

Although generally regarded as having a weak separation of powers compared to other nations, the UK‘s progression towards creating both a symbolic and practical separation of the judicial branch from the executive and legislature under the Constitutional Reform Act 2005 went some way to distancing the judiciary from the other branches of power. Recent qualitative data undertaken in the latter part of 2021 almost unanimously places far greater trust in the Courts than the government, despite concerns regarding transparency and diversity at a time where UK polling data suggests trust in the government has fallen to the lowest recorded level in history. This paper therefore examines key factors that encourage and discourage public approval by comparing the branches of power through the lens of public sentiment, whilst questioning whether the declining trust in government raises questions regarding the legitimacy of their power.

Latin America is going through a time of social and political turbulence. The level of trust in institutions is declining in most parts of the region. However, the situation is not uniform. In some countries, the independence of the judiciary and its legitimacy is criticised, while in other countries it is strengthened. While in Argentina the process of selecting judges is under constant debate, in Uruguay the legitimacy of the Courts does not seem to be affected. Thus, it is possible to ask what value society assigns to the judiciary and what kind of legitimacy society confers on it. This paper draws on data collected from qualitative focus groups conducted in Argentina and Uruguay and explores perceptions of legitimacy held by the public towards the judicial branch and other public institutions in both countries.