DÉMUTH, A. - DÉMUTHOVÁ, S.: Confidence in Justice as a Moral Emotion and Five Mechanisms That Support Its Renewal or Enhancement. Právny obzor, 103, 2020, special issue, pp. 50-62.
Keywords:
transparency, intelligibility, timeliness, personal responsibility, professional ethicsIntroduction
Confidence in justice and the system that ensures it are basic preconditions for afunctional society. The main indicators of confidence in the justice system are satisfaction of the general population and the willingness of economically active entities to operate within the sector. Social philosophers, psychologists, sociologists, political scientists, and theorists of the state and law have long studied the determinants and selected discriminators that influence our perception of the reliability and enforceability of the law, as well as of the mechanisms that benefit or interfere with the function of the justice system.
After the widespread media reporting of the Threema case and the operations of the National Criminal Agency (NAKA),
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such as Tempest (judicial bribery), Mills of God (prosecutorial bribery), Gale (judicial corruption), and Purgatory (investigatory corruption), public confidence in the Slovak judiciary and justice system has experienced one of its most significant declines since the Slovak Republic was established.
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Therefore, in the present study, we focused on five tools that should help improve the justice system of the Slovak Republic and thus restore public confidence in the functionality, lawfulness and reliability of the judiciary. We conceive trust as a moral emotion; that is, as a mental state 'that is linked to the interests or welfare of either society as a whole or at least of persons other than the judge or agent'.
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1. Transparency
In 1776, Jeremy Bentham wrote the book
A Fragment on Government,
in which he introduced the basic ideas of utilitarianism and moral and legal philosophy. In the introduction to the
Principles of Morals and Legislation
(written in 1780, published in 1789), he subsequently developed his theory of criminal law, culminating in the famous idea of the Panopticon
(Panopticon; Or, The Inspection House,
1791),
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which described the radical reform of prison and the entire social system. Notwithstanding the contemporary conception and critique of this infamous idea, the principle of visibility and transparency has become a basic tenet of the modern understanding of the state and law in Western culture. The central principle of Bentham's proposals was to transform the dark and invisible areas in society to make them bright and under control. According to Bentham, this should result in well-disciplined prisoners, while allowing for supervision of the guards, and thus a solution to the age-old question, 'Who will guard the guards themselves'.
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Bentham realised from the beginning that the Panopticon principle could be applied to other areas of social life, as well as to prisons.
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Indeed, as Michel Foucault
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demonstrated, the idea of panopticism and supervision became one of the most effective ways to impose discipline and control the use of power in the modern epistemic.The requirement for transparency and (public) supervision is by no means new. It can be found to varying degrees and in the Greek polis and ancient Rome, as well as in Machiavelli's principle of the public prosecutor,
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Sartre's conception of conscience,
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and Popper's concept of an open society.
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For a long time, the transparency of court decisions has been strengthened in the Slovak legal system by requiring courts to publish their judgements and make them accessible, under the conditions and to the extent provided by
Section 82a of Act No. 757/2004 Coll. on courts.
The details of the publication of court decisions are regulated by the
Decree of the Ministry of Justice of the Slovak Republic on the publication of judicial decisions No. 482/2011 Coll.
Furthermore, in accordance with
Act No. 211/2000 Coll. on free access to information,
courts must make all judgements public, including void prosecutions and those rejected because the case had no merit.
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These measures have increased the transparency of court decisions by making the outcomes publicly available, thus bringing them into the light and allowing assessment by t