3.1.1 Historical antecedents

While Belgium enjoyed a strong reputation of statistical analysis back in the nineteenth century, with Adolphe Quetelet as its prime representative, the following decades witnessed the gradual decline of systematic interest in collecting adequate data about the functioning of courts, and conducting scientific research on the basis of it. It would take until the 1980s for the University of Antwerp to conduct the first comprehensive study of court statistics in 1980–1982 (Langerwerf, Van Loon and Van Houtte, Reference Langerwerf, Van Loon and Van Houtte1986). The authors were inspired by a number of international studies, mostly from the US, that had seen the light of day during preceding years, including Galanter's famous empirical studies on litigation (Reference Galanter1974, Reference Galanter1986) and the prominent Civil Litigation Research Project (CLRP) under the leadership of Trubek (Reference Trubek1980). They marked an increasing interest in building an empirical infrastructure to allow an evidence-based policy to take root. In a similar vein, Rosenberg (Reference Rosenberg1981, p. 473) had called for a ‘community of interest between the lawmakers and the social scientists … in regard to such endemic problems of civil justice as excessive delay and costs’. Likewise, the Antwerp team's main purpose was to contribute to finding solutions for the malfunctioning of the (mostly civil) courts in Belgium, including the long proceedings and ensuing delays. It collected basic information in all neighbouring countries and focused in more detail on the production of justice statistics in France and Germany. The heart of the study analysed the various steps, and the length of the proceedings, before the court of first instance in Antwerp by means of a general overview of all 5,600 cases newly lodged in 1975, and a representative sample of 1,000 files. It concluded that the proceedings took an unnecessarily long time, partly because of structural problems in the court and partly because of the delaying tactics of some lawyers. Based on these conclusions, and the experiences of foreign countries, the research team proposed to use a new model form that would contain much more information and allow for more integrated information management. Over the years various research teams from the University of Antwerp continued to produce valuable scientific studies about the functioning of the (mostly civil) courts and their existing problems (i.a. Van Loon and Langerwerf, Reference Van Loon and Langerwerf1987; Demuylder, Franssen, Van Houtte, and Van Loon, Reference Demuylder, Franssen, Van Houtte and Van Loon2000).

3.1.2. The dispute pyramid

The two seminal studies from the US (Galanter and Trubek), and the extensive stream of literature they entailed (e.g. Felstiner, Abel, and Sarat, Reference Felstiner, Abel and Sarat1980), also had far-reaching consequences for socio-legal studies in Belgium. In the early 1990s, Wouters and Van Loon (Reference Wouters and Van Loon1992) published the first empirical study of civil litigation in Belgium that adopted the ‘legal dispute pyramid’ model. Based on a quantitative survey of 500 households in Flanders, their findings came remarkably close to the ones produced in the US and other jurisdictions, despite the many differences in procedure and organisation. The authors found that households had on average nine situations that entailed some legal aspect (e.g. buying property, buying clothes, employment, divorce), and about 40 per cent reported to have encountered one or more legal problems. When asked how they had dealt with these legal problems, one-third indicated that the problems had been solved informally after contacting the other party. Of the remaining two-thirds of cases, nearly 80 per cent called on a third party to help solve the legal dispute, and eventually a good 10 per cent decided to initiate a court case. In view of these figures, the authors concluded that Belgium displayed a high degree of informal dispute settlement and a high drop-out rate before the stage of court filing, which was limited to one in ten in any situation with a legal dimension. The called it a ‘tendency to litigation avoidance’, but also highlighted that this can differ across the types of disputes at stake. To date, this study remains one of the very few with adequate statistical data on the way Belgian people deal with legal disputes. Plans are currently being discussed to undertake a follow-up study based on the model of the ‘dispute resolution delta’, as developed by Dutch researchers (Van Velthoven and Klein Haarhuis, Reference Van Velthoven and Klein Haarhuis2010).

The same line of research generated a number of studies on non-judicial forms of conflict settlement, also known under the term ‘Alternative Dispute Resolution’ (ADR). Parmentier and Hubeau (Reference Parmentier and Hubeau1990) for the first time analysed this tendency in Belgium, and collected studies from various fields, including consumer law, juvenile protection law and criminal law. They concluded that these fields were at the forefront of using mediation and arbitration techniques to address legal disputes to avoid them going to court. Fascinated by these developments, the Association of Flemish Jurists (Vlaamse Juristenvereniging – VJV) in 2000 devoted its annual symposium in Leuven to the theme of mediation and amicable settlement in Belgian law. Several rapporteurs highlighted the expanding use of ‘alternative’ methods – mostly mediation – in an increasing number of legal fields, including public law, commercial law, criminal law, etc. On this occasion, Parmentier (Reference Parmentier2001) sketched three major challenges for the further development of mediation in particular and ADR in general, namely proceduralisation (striking a balance between the informality of non-judicial procedures and the legal protection of participants), institutionalisation (refocusing on the core tasks of state institutions and subcontracting non-core tasks to other partners), and professionalisation (finding the middle way between quality standards for professionals and guaranteed access to the profession). He argued that the three challenges gained different content when placed against the background of a rapidly changing society in terms of diversifying culture, economic globalisation and technological innovation.

The socio-legal research agenda on ‘alternatives’ to formal court proceedings was deepened in two specific fields of law. In relation to criminal law, mention should be made of a large four-year research project on the non-judicial processing of criminal cases by the Public Prosecutor's Office in Belgium, carried out between 1996 and 1999 by a team from KU Leuven, UC Louvain and Université Saint Louis – USL (Fijnaut, Van Daele, and Parmentier, Reference Fijnaut, Van Daele and Parmentier2000; Parmentier, Fijnaut, and Van Daele, Reference Parmentier, Fijnaut, Van Daele, Fijnaut and Parmentier2000). Based on statistical data collection and interviews with judges and prosecutors, the research team came to some remarkable results that partly contradicted what was formulated in public discourse and even some previous research. One of the central findings was that two major instruments for the non-judicial processing of criminal cases in Belgian law, i.e. victim–offender mediation and prosecutorial fines, were hardly used, although they were introduced with the aim of giving offenders more responsibility and unclogging the criminal justice system. On average in Belgium, less than 1 per cent of all criminal cases ended using either of these methods. Only some judicial districts with open-minded prosecutors showed higher percentages for these forms of restorative justice, while many others remained non-responsive. When interviewed about the figures, many magistrates emphasised the time-consuming character of engaging in such ‘alternatives’, and the limited personnel resources to give effect to them. Another major conclusion from the same research related to the huge difficulties for reliable data collection in the criminal justice chain due to the strongly varying systems of data input by the police and the prosecutorial services, and the strict guidelines on the release of information to the outside world. Second, interesting socio-legal research was also produced in the field of public law. Several studies focused on the functioning of the new institution(s) of ombudsman/me) in Belgium, and their potential to mediate conflicts between citizens and public administrations. One such study (Hubeau, Reference Hubeau, Hertogh and Weyers2011) concluded that predominantly white, middle-aged and educated citizens found their way to the ombudsman, thus confirming the hypothesis of the so-called ‘Mattheus effect’ (those who have will be given more).

3.2.1 Historical antecedents

This line of research can be traced back to the 1970s, when two teams of forerunners engaged in seminal work on this topic. First of all, in 1973 an Antwerp team led by Van Houtte produced an interesting book on the acceptance of legal norms, in which the attitudes and opinions vis-à-vis tax rules and bio-ethical issues were studied (Van Houtte, Callens, Lafaille and Lefevere, Reference Van Houtte, Callens, Lafaille and Lefevere1973). Based on a questionnaire developed by Vinke and his team at Leiden University, the Flemish team conducted a series of 460 face-to-face interviews with employed male respondents in the district of Antwerp. Respondents were asked to express their attitudes in relation to legal rules on a wide number of topics. The authors concluded that there was a high degree of diversity in the attitudes of the respondents in relation to most questions posed: in the field of tax laws the level of income and position of the respondent (e.g. employee or independent) were the main factors in understanding the direction of the answers; for the bio-ethical issues, the religious affiliation of the respondents played a central role. In their view, this type of research proved sociologically quite relevant as it bore a direct link with the pluriformity of ‘legal consciousness’ in modern society, and could generate a broader understanding of how the general public interprets legal rules and complies with them. Furthermore, they situated their research within the specific thematic studies on Knowledge and Opinion about Law (KOL research) that had burgeoned in Scandinavia (Kutschinski, Reference Kutschinski, Maeijer, Vinke and Van der Ven1970) and Poland (Podgorecki, Reference Podgorecki1973), and quickly expanded to other countries of Europe and beyond.

The second example of this research line lies in the work of Goffin and Tsamadou (Reference Goffin and Tsamadou1973), undertaken under the supervision of Versele, at the Université libre de Bruxelles. They interviewed a sample of 375 people about various aspects of the justice system (including the image of criminal procedure and the judges), and explored their general knowledge of the law and attitudes towards criminal policy. The results showed that opinions on these issues mostly differed according to the socio-economic background, age and level of education of the respondents.

After these two pioneers, research projects about public opinion remained very scarce in Belgium for more than a quarter of a century. Not until the turn of the millennium did a renewed interest emerge in knowing what people think of the law and the justice system. Particularly the latter had been the object of increasing critiques in the two decades before (Parmentier and Vervaeke, Reference Parmentier and Vervaeke2011). Most of these were related to the poor functioning of the criminal justice system, that had proven ineffective or very slow in addressing some high-profile cases, like the ‘Gang of Nivelles’ that killed more than twenty people in the mid 1980s and were never resolved, the murder of top socialist party politician André Cools (1991), and the corruption case of Agusta helicopters and socialist party financing (1993 and following). But the top case that profoundly shook Belgian politics and society in 1996 was that of the missing children, who were abducted and killed by Marc Dutroux, which led to more than 300,000 people marching through the streets of Brussels in October of that year to express their support for the parents and their dissatisfaction with the police and justice system. Each of these cases provoked thorough political debates in parliament, and institutional reforms of the police and judicial services (Parmentier et al., Reference Parmentier, Fijnaut, Van Daele, Fijnaut and Parmentier2000).

In the same period, thorough academic reflection on popular trust in the justice system accelerated, as did the sobering conclusion that Belgium was lacking a standardised and reliable instrument to measure the opinions and attitudes of the wider public. The King Baudouin Foundation,Footnote ³ a non-profit organisation for public affairs, accepted this major challenge, and in co-operation with the Federal Office for Scientific, Technical and Cultural Affairs,Footnote ⁴ a quasi-independent public institution for scientific policy, commissioned several research projects. A concept study by Franssen, Genard, Van Campenhoudt, Cartuyvels, and Marquet (Reference Franssen, Genard, Van Campenhoudt, Cartuyvels and Marquet2000) of the USL had taken the French model of ‘social representations’ as a point of departure. It proposed to investigate popular attitudes in a qualitative way, by conducting personal interviews and organising focus groups with ordinary citizens and legal professionals in their respective ‘theatres of law’. Despite this interesting proposal, the Federal Office and the King Baudouin Foundation finally decided in 2000 to jointly finance a quantitative survey on people's attitudes about the justice system with a representative sample of the Belgian population. The task to develop a ‘justice barometer’ and administer it for the first time was given to a joint team of the KU Leuven and the Université de Liège. This proved the start of a series of Justice Barometers from 2002. From the second edition of 2007 onwards, the High Council for the Judiciary assumed the role of funding agency and has since subcontracted this type of survey to a private company.

In the following paragraphs, we first briefly highlight some salient findings of the Justice Barometers in Belgium, and other research of a more qualitative nature. Finally, we offer some concluding thoughts on these types of research within the context of sociology of law.

3.2.2 Main findings of the Belgian ‘Justice Barometers’

In the last fifteen years, Belgium witnessed four waves of the Justice Barometer (2002; 2007; 2010; 2013), a quantitative public opinion survey about the justice system using telephone interviews with a representative sample of the population. The first Justice Barometer was administered in 2002, and the ensuing ones have by and large adopted the same questionnaire in order to allow for comparative conclusions over a number of years. More information about the exact methods used to develop the questionnaire, create the sample, and guarantee representativeness are found in a series of other publications (i.a. Parmentier, Vervaeke, Doutrelepont and Kellens, Reference Parmentier, Vervaeke, Doutrelepont and Kellens2004; Parmentier et al., Reference Parmentier, Vervaeke, Goethals, Doutrelepont, Kellens, Lemaitre, Cloet, Schoffelen, Vanderhallen, Biren, Sintobin, Van Win and Vandekeere2004).

In line with earlier summary reports (Parmentier and Vervaeke, Reference Parmentier and Vervaeke2011), we limit ourselves here to some salient findings from the first three Justice Barometers (2002; 2007; 2010) concerning two main aspects of the Belgian justice system: (a) public confidence in general, and (b) public confidence in the work of judges and lawyers. The detailed figures, as well as reports on other issues of the Justice Barometers, can be found in a series of publications in Dutch (Hoge Raad voor de Justitie, 2007, 2010; Parmentier et al., Reference Parmentier, Vervaeke, Doutrelepont and Kellens2004; Wyseur, Schoffelen, Vervaeke, Parmentier and Goethals, Reference Wyseur, Schoffelen, Vervaeke, Parmentier and Goethals2005), French (Parmentier, Vervaeke, Doutrelepont and Kellens, Reference Parmentier, Vervaeke, Doutrelepont and Kellens2004; Conseil Supérieur de la Justice, 2007, 2010) and English (Parmentier, Vervaeke, Doutrelepont and Kellens, Reference Parmentier, Vervaeke, Doutrelepont and Kellens2004).

3.2.2.1 Public confidence in the justice system in general

In all three Justice Barometers, respondents were asked the following identical question concerning their general confidence in the justice system: ‘Broadly speaking, can you tell me whether you have confidence in the justice system?’ The first sweep (2002) found that 41 per cent of Belgians expressed complete or reasonable confidence in their justice system, while 56 per cent had little or no confidence, and 3 per cent did not express any opinion (see Figure 1), with respondents from Flanders having a more positive attitude towards the justice system than respondents from the Walloon provinces and from the Brussels Capital Region. It was clear that the level of confidence declined with age and interest in more extreme political parties, and increased with level of education and income, as well as reading quality newspapers or listening to public radio and television. A very important finding was that people who had had experience with the justice system (both criminal and civil proceedings, e.g. as witnesses, victims, plaintiffs, defendants, etc.) clearly appeared to have less confidence than people without direct experience.

Figure 1

Confidence in the justice system – changes over time: percentage saying ‘yes’ or ‘somewhat yes’.

notes:1. Question: ‘Do you have confidence in the justice system? (yes, somewhat yes, somewhat no, no).’2. Sample sizes: 2002: 3,200; 2007: 3,210; 2010: 3,237.3. Differences of two percentage points or more can be regarded as statistically significant.Source: Parmentier, Vervaeke, Goethals et al., 2004; Hoge Raad voor de Justitie / Conseil Supérieur de la Justice, 2010.

In the next two sweeps (2007; 2010), the degree of confidence first sharply increased from 41 per cent to 66 per cent (a 50 per cent increase), and then slightly declined to 61 per cent (a decrease of about 10 per cent). Despite these apparent changes, the associations with all major variables remained unchanged, as confidence declined with higher age and lower levels of education; and increased with readership of quality newspapers or listening to public radio and television, and with voters for mainstream political parties; and direct experiences with the justice system generated significantly lower levels of confidence.

All Justice Barometers have included a comparative question about confidence in various institutions (see Figure 2). In 2002 it became clear that the Belgian justice system generated less confidence than other institutions: it then occupied fourth place and came way behind the educational system (86 per cent), the police (66 per cent), and the parliament (53 per cent). On the other hand, it also left two other institutions behind it, namely the church (39 per cent) and the press (40 per cent), although the differences between the three of them were not statistically significant, placing them in joint fourth position. In the 2007 sweep, the same order applied but at an overall higher confidence levels for all institutions: the educational system went up from 86 per cent to 93 per cent, the police increased from 66 per cent to 83 per cent, the parliament gained more confidence from 53 per cent to 70 per cent, the press went up from 40 per cent to 47 per cent and religious institutions increased slightly from 39 per cent to 44 per cent. The same first positions for the educational system (94 per cent) and the police (85 per cent) in 2010, but a different order for the other institutions, with the parliament (to 53 per cent) and the church (to 36 per cent) losing ground. Some of these falls could be explained by the problematic situation of the very long negotiations to form a new federal government in the period 2010–2012, and the revelations about sexual abuse in the Catholic Church. Less easy to explain, however, are the high and even increasing levels of confidence in the police, according to some authors (e.g. Van Damme, Pauwels, Pleysier and Van de Velde, Reference Van Damme, Pauwels, Pleysier and Van De Velde2010) linked to the effects of community-oriented policing, or even the effects of the fundamental reforms of police structures since 1998.

Figure 2

Confidence in various institutions – changes over time: percentage saying ‘yes’ or ‘somewhat yes’.

notes:1. Question: ‘I am going to read you a list of Belgian Institutions. Speaking generally, can you tell me if you have confidence in each of them or not?’2. Sample sizes: 2002: 3,200; 2007: 3,210; 2010: 3,237.3. Differences of two percentage points or more can be regarded as statistically significant.Source: Hoge Raad voor de Justitie / Conseil Supérieur de la Justice (2010).

3.2.3 More qualitative understandings of public opinion on law and justice

Trying to capture public opinion about the justice system through a quantitative survey leaves many questions unanswered, particularly in relation to our deeper understandings of how people construct their attitudes and why they respond the way they do. After the first Justice Barometer of 2002, the same Federal Science Policy Office funded follow-up qualitative research in 2003−2004, with a view to analysing in more depth some of the quantitative data. Carried out by the same teams from Leuven and Liège, this research focused on four judicial districts, two in Flanders and two in Wallonia, that were chosen on the basis of the preceding quantitative results (Goethals et al., Reference Goethals, Lemaître, Doutrelepont, Fincoeur, Kellens, Parmentier, Simays, Wyseur, Van Aerschot and Vervaeke2005). Eight focus groups with citizens and four focus groups with legal professionals were organised in each district, with a view of asking about their respective attitudes and opinions in relation to the justice system, the problems identified, and the proposals for change. It will suffice here to highlight just some of the major findings and refer the interested reader to extensive reports (Goethals et al., Reference Goethals, Lemaître, Doutrelepont, Fincoeur, Kellens, Parmentier, Simays, Wyseur, Van Aerschot and Vervaeke2005; Schoffelen, Parmentier and Vervaeke, Reference Schoffelen, Parmentier, Vervaeke, Reynaert, Vandewalle and Verlet2006). First of all, the focus group participants frequently made associations like ‘slow’, ‘expensive’, and above all ‘unjust’ in relation to the justice system. The sessions confirmed many of the problems highlighted in the survey at large, such as lacking information about and from the justice system, the need for parties to be closely involved in the administration of their own case, limited access to the justice system (due to the cost and mostly to the length of proceedings), the perceived abuse of the procedures by judges and lawyers, and the disrespect for citizens in their dealings with the justice system. All judicial actors received strong criticism (i.e. obscure legal language, long and costly procedures), but particularly lawyers were very critically ‘judged’ (dishonesty, incompetence or lack of motivation in the case of legal aid). While many of these results emerged across all focus groups, there were also some variations between groups: citizens with direct experience of the justice system consistently demonstrated a lower degree of confidence, irrespective of whether their experience was with the civil or the criminal justice system; younger persons tended to adopt more positive attitudes; and poorly educated persons proved quite negative towards the justice system, but also some highly educated people were very critical.

Next to this general qualitative research about the Belgian justice system, the Federal Science Policy Office funded another qualitative study with a specific segment of the population, namely foreigners and residents of foreign origin. Between 2001 and 2003, 120 respondents, half from sub-Saharan Africa and half from Morocco and Turkey, were interviewed in depth (Foblets, Martiniello, Parmentier, Vervaeke, Djait and Kagne, Reference Foblets, Martiniello, Parmentier, Vervaeke, Djait and Kagne2004; Foblets, Martiniello, Parmentier and Vervaeke, Reference Foblets, Martiniello, Parmentier and Vervaeke2007). This research focused on the expectations and experience of immigrants and residents of foreign origin of the legal (and judicial) system. All were asked general questions about law and justice, as well as specific questions in four areas, namely, residence, work and employment, protection of cultural identity, and nationality and citizenship. In general, the research identified three common threads in relation to the respondents’ views on law and justice: the first revealed that negative experiences with law and the judicial system had a strong impact on the respondents’ perceptions (as negative experiences clearly have much stronger and more decisive impact than positive experiences); the second one clearly showed the existing gap between general legal principles and their concrete implementation, leading to discrimination, uncertainty, personal frustration and decreasing institutional legitimacy; finally, the respondents’ opinions on law and justice were strongly shaped by their personal (migration) histories.