7 - The Dutch Hoge Raad

Summary

The expansion of high courts’ roles in governance, this book asserts, has become a prominent feature of modern democracy. This chapter, focusing on the Hoge Raad, the High Court of Cassation of the Netherlands, illustrates that trend. However, the story of the Hoge Raad in the last four decades also shows that shifts in judicial roles are not always permanent. For lack of internal leadership, over time the Hoge Raad passively retreated from some activist roles in governance, and other political, administrative, and judicial bodies – hungry for influence – partially shouldered it aside. In recent years, however, the Court has shown signs of resurgence. This chapter demonstrates that the analysis of judicial roles in governance must be attentive to the place of courts in the broader political landscape, to the important roles that courts fail to play – to the ebb and flow of judicial power – as well as to the effect that societal and political changes can have on judges’ roles in governance.

The Kingdom of the Netherlands is a small country that does not have a tradition of visible courts. Article 120 of the Constitution forbids judicial review. For a long time it was deemed unthinkable that Dutch politicians would enact laws that did not comply with the Constitution; this assumption reflects the general trust in authorities that was so characteristic of the Netherlands (Koopmans 2003: 76–77; Hofstede 1991). Thus, for a long period of time the Dutch people were accepting of their ruling national elites (Buruma 2006). The country is governed by coalition governments with varying political combinations. This solid tradition reflects a submissive electorate that until the end of the 1960s was organized and disciplined in four separate socioreligious, vertically organized groupings known as pillars (Lijphart). The Netherlands has a queen as head of state, which makes my country an odd case for a positive theory of democracy. Moreover, Dutch political culture has been labeled as a consensus democracy, as opposed to majoritarian democracies such as the United States and the United Kingdom. Ten Kate and Van Koppen have described the “hands-off” relationship between elected politicians and appointed Hoge Raad Justices. They predicted in 1995 that the time had come for judicial review in the Netherlands (ten Kate & van Koppen 1995, van Koppen 1990). However, some plans are still pending, and unlike recent changes in Belgium and France, the Netherlands do not yet have a direct form of judicial review.