(Re)defining Conflicts: Democratic Legitimacy in Socially Sensitive Court Cases

Socially sensitive court cases are often discussed within the framework of democratic legitimacy. According to critics, problems of democratic legitimacy would not only manifest themselves empirically (a lack of societal acceptance), but also normatively (a lack of justification of political power). Against the background of citizens and interest groups aiming to transform a social conflict into a legal one that is suitable for a criminal trial, this paper argues that a third conception of legitimacy is needed: both the common empirical focus on perceived legitimacy, as well as the pure normative focus on objective qualities of powerholders obscure the social dynamics of powerholders making claims to legitimacy and their audiences judging these claims. Drawing on recent theoretical work on legitimacy, this paper argues that democratic legitimacy neither resides in individuals’ minds nor in objective qualities of powerholders. Instead, it will always need to be constructed in a constant dialogue between multiple audiences, who express their problems and conflicts, and powerholders that respond to them within the normative frameworks in which they operate. This dialogic approach to legitimacy thus implies conducting both empirical and normative research. After empirically studying the social practices of claims-making, dialogue and judgment through a media analysis, this paper turns to democratic theory in order to spark our institutional imagination on how to make the responses of courts more democratic, while still accounting for the normative limits in which they operate.