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INTRODUCTION TO DUTCH LAW
INTRODUCTION TO DUTCH LAW
Fifth Edition
Edited by Jeroen Chorus, Ewoud Hondius &Wim Voermans
Published by:Kluwer Law International B.V.PO Box 3162400 AH Alphen aan den RijnThe NetherlandsWebsite: www.wklawbusiness.com
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© 2016 Kluwer Law International BV, The Netherlands
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Printed in the United Kingdom.
List of Editors and Contributors
Mr Ted M. de Boer is a Professor Emeritus of Private International Law andComparative Law, Universiteit van Amsterdam ([email protected]).
Mr Jan H. G. van den Broek is a Senior Legal Counsel at the Confederation ofNetherlands Industry and Employers (VNO-NCW) and the Royal Association SME-Netherlands (MKB-Nederland), and a sometime Justice at the Oost-Brabant DistrictAdministrative Court ([email protected]).
Mr Victor C. van Campen is a Master of Laws Student, Utrecht University and a traineewith Stibbe, Amsterdam ([email protected]).
Mr Jeroen M.J. Chorus is a sometime Vice-president of the Amsterdam Court of Appealand a sometime Professor of Roman Law and Legal History, Leiden University([email protected]).
Mr Sjoerd J.F.J. Claessens is a Senior Lecturer In European Law, Maastricht University([email protected]).
Mr Jan H. Crijns is a Professor of Criminal Law, Leiden University([email protected]).
Mr G. René de Groot is a Professor of Comparative Law and Private International Law,Maastricht University ([email protected]).
Mr Matthias Haentjens is a Professor of Financial Law, Leiden University([email protected]).
Mr Arthur S. Hartkamp is a Professor of European Private Law, Radboud UniversityNijmegen, and a sometime Procureur-General at the Hoge Raad ([email protected]).
Mr Ewoud H. Hondius is a Professor of European Private Law, Utrecht University([email protected]).
Mr Jan Berend Huizink is a Professor of Commercial Law, Vrije UniversiteitAmsterdam ([email protected]).
Mr Antoine J.M. Jacobs is a Professor Emeritus of Labour Law, Social Security Law andSocial Policy, Tilburg University ([email protected]).
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Ms Anne L.M. Keirse is a Professor of Private Law, Utrecht University, and a Justice atthe Amsterdam Court of Appeal ([email protected]).
Mr Charles J. Langereis is an attorney with Wintertaling, Amsterdam, and a sometimeProfessor of Tax Law, Leiden University ([email protected]).
Ms Adrienne J.C. de Moor-van Vugt is a Professor of Constitutional and AdministrativeLaw, University of Amsterdam, and a deputy Justice at the Trade and Industry AppealsTribunal ([email protected]).
Mr Tom Ottervanger is an attorney with Allen & Overy LLP, Amsterdam, and aProfessor of European and Competition Law, Leiden University([email protected]).
Mr Steven Perrick is an attorney with Spinath & Wakkie, Amsterdam, and a Professorof Private Law, University of Amsterdam ([email protected]).
Mr Wibo van Rossum is a Lecturer in Sociology of Law, Utrecht University([email protected]).
Mr Ben A Schuijling is Director of the Business & Law Research Centre, RadboudUniversity Nijmegen ([email protected]).
Mr Henk J. Snijders is a Professor of Civil Law, Leiden University([email protected]).
Mr Arend Soeteman is a Professor Emeritus of Legal Philosophy, Vrije UniversiteitAmsterdam ([email protected]).
Ms Rowie Stolk is a PhD Candidate, Leiden University ([email protected]).
Mr Luc Strikwerda is a sometime Advocate-General with the Hoge Raad([email protected]).
Mr Paul Vlaardingerbroek is a Professor of Family and Juvenile Law, TilburgUniversity ([email protected]).
Mr Tjarda D.O. van der Vijver is an attorney with Allen & Overy LLP, Amsterdam([email protected]).
Mr Wim J.M. Voermans is a Professor of Constitutional and Administrative Law, LeidenUniversity ([email protected]).
LIST OF EDITORS AND CONTRIBUTORS
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Mr Boudewijn W.N. de Waard is a Professor Emeritus of Constitutional and Adminis-trative Law, Tilburg University ([email protected]).
Ms Maartje A.H. van der Woude is a PhD candidate at Leiden University([email protected]).
LIST OF EDITORS AND CONTRIBUTORS
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Summary of Contents
List of Editors and Contributors v
List of Abbreviations xvii
Preface xxi
Part I. Dutch Legal System
Chapter 1. History – J.M.J. CHORUS 3
Chapter 2. Dutch Legal Culture – WIBO VAN ROSSUM 13
Chapter 3. Judicial Organization – ROWIE STOLK AND WIM VOERMANS 33
Chapter 4. Legal Education and the Legal Profession – G.R. DE GROOT
AND S.J.F.J. CLAESSENS 49
Part II. Private Law
Chapter 5. Family Law – P. VLAARDINGERBROEK 59
Chapter 6. Legal Persons – J.B. HUIZINK 93
Chapter 7. Representation, Power of Attorney and Mandate – B.A. SCHUIJLING 117
Chapter 8. Law of Property – J.M.J. CHORUS 123
Chapter 9. Law of Inheritance – S. PERRICK 161
Chapter 10. Law of Obligations – A.S. HARTKAMP 171
Chapter 11. Specific Contracts – E.H. HONDIUS AND A.L.M. KEIRSE 201
Chapter 12. Commercial Law – J.B. HUIZINK 221
Chapter 13. Civil Procedure – H.J. SNIJDERS 245
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Chapter 14. Private International Law – TH.M. DE BOER AND L. STRIKWERDA 281
Part III. Public Law
Chapter 15. Constitutional Law – WIM VOERMANS 317
Chapter 16. Administrative Law – A.J.C. DE MOOR-VAN VUGT
AND B.W.N. DE WAARD 369
Chapter 17. Environmental Law – J.H.G. VAN DEN BROEK 399
Chapter 18. The Criminal Justice System – J.H. CRIJNS AND
M.A.H. VAN DER WOUDE 441
Chapter 19. Tax Law – CH.J. LANGEREIS 475
Part IV. Social and Economic Law
Chapter 20. Labour Law and Social Security – A.T.J.M. JACOBS 503
Chapter 21. Competition Law – TOM OTTERVANGER AND
TJARDA VAN DER VIJVER 537
Chapter 22. Financial Law – MATTHIAS HAENTJENS 559
Part V. Legal Philosophy
Chapter 23. Legal Philosophy – A. SOETEMAN 573
Index 585
SUMMARY OF CONTENTS
x
Table of Contents
List of Editors and Contributors xiii
List of Abbreviations xvii
Preface xxi
Part I. Dutch Legal System
Chapter 1. History – J.M.J. CHORUS 3§ 1. Modern Political History 3§ 2. The Courts 5§ 3. Historical Sources of Dutch Law 7§ 4. Legal Learning 9
Chapter 2. Dutch Legal Culture – WIBO VAN ROSSUM 13
Chapter 3. Judicial Organization – ROWIE STOLK AND WIM VOERMANS 33§ 1. Development of the Court System: Survey 33§ 2. Reform of the Judicial Organization 34§ 3. Constitutional Questions 38§ 4. The Ordinary Courts 39§ 5. The Public Prosecution Service (Openbaar Ministerie) and the
Prosecutor-General with the Supreme Court 43§ 6. Specialized Courts, Private Institutions for the Settlement of Disputes 45§ 7. Administrative Courts 46
Chapter 4. Legal Education and the Legal Profession – G.R. DE GROOT
AND S.J.F.J. CLAESSENS 49
Part II. Private Law
Chapter 5. Family Law – P. VLAARDINGERBROEK 59§ 1. Introduction 59§ 2. General Provisions 60§ 3. Right to a Name 61§ 4. Residency 62
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§ 5. Registration of Births, Marriages, Registered Partnerships and Death 63§ 6. Marriage 65§ 7. Rights and Duties of the Spouses 68§ 8. The Statutory Community of Property and Marriage Contracts 69§ 9. The Dissolution of Marriage 71§ 10. Parentage 75§ 11. Adoption 79§ 12. Minority 82§ 13. Custody (either Parental Authority or Guardianship) over Minors 83§ 14. Access, Information and Consultation 87§ 15. Appointment of a Curator 87§ 16. Maintenance 88§ 17. Absence, Missing Persons, and the Declaration That There Is a
Legal Presumption of Death or That the Missing Person Is Dead 90§ 18. Supervision of Property by a Protective Fiduciary Administration
Order 91§ 19. Protection of Adults’ Immaterial Interests by a Mentorship Order 92
Chapter 6. Legal Persons – J.B. HUIZINK 93§ 1. Legal Personality 93§ 2. Public Bodies and Religious Associations 94§ 3. General Provisions 94§ 4. Associations 97§ 5. Cooperatives and Mutual Insurance Societies 100§ 6. The NV 102§ 7. The BV 109§ 8. Large Companies Limited by Shares and Large Companies with
Limited Liability 111§ 9. Foundations 113§ 10. Groups, Mergers and Divisions 114§ 11. The Societas Europaea 115§ 12. As a Final Note 116
Chapter 7. Representation, Power of Attorney and Mandate – B.A. SCHUIJLING 117
Chapter 8. Law of Property – J.M.J. CHORUS 123§ 1 General Principles and Concepts; Survey of the Law of Property 123§ 2. Acquisition of Ownership and of Other Property 139§ 3. Security Rights and Other Restrictions to Paritas Creditorum 151
Chapter 9. Law of Inheritance – S. PERRICK 161§ 1. Introduction 161§ 2. Intestacy 162§ 3. Wills 163
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§ 4. Devolution of the Estate 167§ 5. Miscellaneous 169
Chapter 10. Law of Obligations – A.S. HARTKAMP 171§ 1. Obligations in General 172§ 2. Unlawful Acts (Torts) 181§ 3. Obligations Resulting from Sources Other than Contract and Tort 186§ 4. Contract 188
Chapter 11. Specific Contracts – E.H. HONDIUS AND A.L.M. KEIRSE 201§ 1. Introduction 201§ 2. Why Specific Contracts Are Dealt with by Legislation 203§ 3. Sale and Exchange 204§ 4. Donation 205§ 5. Lease and Hire 206§ 6. Supply of Services 208§ 7. Medical Services 209§ 8. Travel Contract 213§ 9. Contracts for Works 217§ 10. Contract of Settlement 218§ 11. Insurance 219
Chapter 12. Commercial Law – J.B. HUIZINK 221§ 1. Commercial Law 221§ 2. Insurance Law 224§ 3. Negotiable Instruments 227§ 4. Transport Law 229§ 5. Intellectual Property 233§ 6. Insolvency 238§ 7. Partnerships 242
Chapter 13. Civil Procedure – H.J. SNIJDERS 245§ 1. Introduction 245§ 2. Fundamental Principles 251§ 3. Principal Characters 256§ 4. Basic Procedure for Contentious Jurisdiction at First Instance 262§ 5. The Basic Procedure for Voluntary Jurisdiction at First Instance 266§ 6. Means of Recourse 267§ 7. Special Procedures 272§ 8. Protective Measures and Enforcement Measures 273§ 9. Duration and Costs 275§ 10. Proceedings Outside the Courts 277
TABLE OF CONTENTS
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Chapter 14. Private International Law – TH.M. DE BOER AND L. STRIKWERDA 281§ 1. Sources 281§ 2. Transnational Litigation: Jurisdiction 286§ 3. Transnational Litigation: Procedural Issues 290§ 4. Choice of Law 292§ 5. Recognition and Enforcement of Foreign Judgments 308
Part III. Public Law
Chapter 15. Constitutional Law – WIM VOERMANS 317§ 1. The State and the Constitution 317§ 2. The Legal Position of the Individual 329§ 3. Parliamentary System 334§ 4. Acts of Parliament and Other Regulations 344§ 5. Foreign Relations 352§ 6. The Administration of Justice 357§ 7. Decentralization 360
Chapter 16. Administrative Law – A.J.C. DE MOOR-VAN VUGT
AND B.W.N. DE WAARD 369§ 1. Constitutional Law as the Basis of Dutch Administrative Law 369§ 2. Sources of Administrative Law 369§ 3. General Features of Dutch Administrative Law 371§ 4. The General Administrative Law Act 377§ 5. Enforcement 381§ 6. Appeal and Judicial Review 386§ 7. The Character of the Proceedings 390§ 8. Alternatives to Traditional Public Law Instruments 393
Chapter 17. Environmental Law – J.H.G. VAN DEN BROEK 399§ 1. Introduction 397§ 2. Environmental Law (Omgevingsrecht) 398§ 3. Implementation of European Directives 402§ 4. Enforcement 412§ 5. Clustering Environmental Law 413§ 6. Environmental Management Act (EMA) 416§ 7. Water Act 419§ 8. Crisis and Recovery Act 422§ 9. Environmental Permitting (General Provisions) Act 423§ 10. Nature Conservation Law 425§ 11. Single Environmental and Planning Act 426§ 12. Climate Change Litigation against the State: The Urgenda Case 432
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Chapter 18. The Criminal Justice System – J.H. CRIJNS AND
M.A.H. VAN DER WOUDE 441§ 1. Introduction: The Dutch Criminal Justice System 441§ 2. Some Statistical Data 442§ 3. Areas and Sources of Criminal Law 445§ 4. The Principle of Legality 446§ 5. Key Agencies in the Criminal Justice System 447§ 6. Substantive Criminal Law 454§ 7. Criminal Procedure 461§ 8. Sentencing & Sanctioning 470§ 9. Legal Remedies 473
Chapter 19. Tax Law – CH.J. LANGEREIS 475§ 1. Introduction 475§ 2. Survey of Minor Dutch Taxes and Duties 478§ 3. Value Added Tax 481§ 4. Personal Income Tax 484§ 5. Corporate Income Tax 491§ 6. Dividend Withholding Tax 498§ 7. International Tax Aspects 498
Part IV. Social and Economic Law
Chapter 20. Labour Law and Social Security – A.T.J.M. JACOBS 503§ 1. Introduction 503§ 2. Industrial Relations in the Netherlands 506§ 3. Industrial Democracy 513§ 4. Conditions of Employment 516§ 5. Termination of the Contract of Employment 520§ 6. Various Issues of Labour Law 523§ 7. The Social Security System 527§ 8. The Various Branches of Social Security 530
Chapter 21. Competition Law – TOM OTTERVANGER AND
TJARDA VAN DER VIJVER 537§ 1. Introduction 537§ 2. Anti-competitive Practices 539§ 3. Abuse of Dominance 543§ 4. Merger Control 545§ 5. Other Regulatory Tasks of ACM 548§ 6. State Aid 553
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Chapter 22. Financial Law – MATTHIAS HAENTJENS 559
Part V. Legal Philosophy
Chapter 23. Legal Philosophy – A. SOETEMAN 573§ 1. Introduction 573§ 2. Morality of Law 574§ 3. Justification of Morality? 577§ 4. Justice 578§ 5. Legal Decision 581
Index 585
TABLE OF CONTENTS
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Chapter 2 – Dutch Legal Culture
Wibo van Rossum*
1. Introduction
The Dutch expression ‘soft whenever possible, tough when necessary’ (zacht waar hetkan, hard waar het moet) seems to indicate the balancing act of Dutch legal and policyprofessionals when they regulate, govern, and manage society. Balancing is neededbecause ‘possible’ and ‘necessary’ are unsettled criteria. The ‘soft’ approach as generalDutch value is visible especially in those legal practices that are circumscribed andcharacterized with terms like pragmatic, tolerant, looking for consensus, and tact. Thischapter argues that the study of black letter law, specifically in the case of the Netherlands,presents a rather distorted picture of what Dutch law ‘is’, ‘does’, and how it is ‘perceived’in society. It therefore makes sense to place Dutch law and legal practice in the broadersocial and historical context of society; in other words, this chapter attempts to understandDutch legal culture. The approach in this chapter is in line with understanding law as partof, or rather embedded in the culture of a society.1
Conceptually the term ‘legal culture’ is problematic. Therefore I start out with adiscussion of the meanings and limitations of the concept of legal culture (no 2). The restof the chapter is substantially about specific characteristics of Dutch law and legalpractice, and its underlying values. After presenting manifestations of the ‘soft wheneverpossible’-approach and its historical roots (no 3), three case studies will be discussed. Theapproach towards illegal drugs that is strongly influenced by a concern over health has themost extensive treatment (no 4), and is followed by a section on the development ofeuthanasia that is guided by the willingness to put ourselves in the shoes of those whosuffer (no 5), and the stubborn paternalism towards divorced parents to take responsibilityfor their children (no 6). The last example is the exception that proves the rule, since it isat odds with the basics of Dutch legal culture. I conclude with a debate on the downsidesof Dutch legal culture (no 7).
* A shorter, popular version of this chapter was published under the title Legal Culture in E. Besamusca &J. Verheul (ed) Discovering the Dutch; On Culture and Society of the Netherlands, Amsterdam, 2014,287-296. The chapter has been rewritten with the help of S. van de Put who followed my courseComparative Legal Cultures in the academic year 2014-2015. I also thank my student-assistant J. Rijkenfor finding additional literature.
1 See L. Rosen, Law as Culture; An Invitation, Princeton 2008.
J.M.J. Chorus et al. (eds.), Introduction to Dutch Law, Fifth Edition p. 13–32.© 2016 Kluwer Law International. Printed in the Netherlands.
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2. The concept of legal culture
The concept of legal culture consists of two terms and both need to be explained.
Culture‘Culture’ is what social scientists (anthropologists, sociologists) call an ‘essentiallycontested concept’.2 This means that its definition is not agreed upon, and its usefulnessis disputed. First, culture is by many considered to be a ‘catch all’ concept that enters thescene when all other concepts have failed to deliver results. I will show that this critiqueis based on a positivistic idea of social science, and that the concept should rather be seenas a heuristic device firmly based in the interpretative tradition of the social sciences.Second, culture can be used in a misleading way as if a ‘culture’ is something‘homogenous, tightly bounded, unchanging and determining’.3 This view of homogeneityis widely recognized as being wrong, but I will show this does not discard the concept. Thethird problem of the concept of culture is its delineation in society. Does a country ‘have’a culture? Does a province? Does a local court? Should we also speak of a Europeanculture? Realizing that the concept of culture is a heuristic device will make us accept itsworth for some purposes.
Regarding the first critique of the concept of culture as ‘explanatory residue’, Iconsider this a valid critique in the positivistic tradition of the social sciences. Inpositivistic social sciences, the main perspective is on finding correlations and preferablycausal relations between social phenomena, by using quantitative data analysis. Research-ers would like to find for example to what extent ‘the number of civil court cases’ in acountry (dependent variable) is influenced by ‘the ease of access to lawyers’ (independentvariable). Researchers then rightly problematize what to label as ‘culture’: is the numberof court cases an expression of culture, or the ease of access to lawyers? And what doesthe label ‘culture’ add to our knowledge? Or are both an expression of culture? Then again,what does ‘culture’ add as explanatory insight when we already know the relationshipbetween access to lawyers and number of court cases? In my opinion, positivistic socialscientists should indeed use concepts that label and characterize as clearly as possible thesocial phenomena that they want to measure. ‘Culture’ as a concept is not one of them. Thestory is different in the interpretative tradition of the social sciences. In this tradition,researchers mainly use qualitative research techniques like observations and in depthinterviewing in order to gain understanding of the reasons and often unspoken and implicitmotivations behind people’s actions. The concept of culture makes one focus on the fluid,hard to grasp but nevertheless important practices and values of groups of people and ofinstitutions, and to understand practices and values as ‘hanging together’. The concept ofculture makes one understand the holistic nature of social life. ‘Culture’ in this traditiondoes not explain anything, but makes one see multiple social connections.
2 The following section on the concept of culture owes much to D. Nelken, specifically Legal Cultures, in:D.S. Clark (ed), Comparative Law and Society, Cheltenham etc 2012, G. Samuel, An Introduction toComparative Law Theory and Method, Oxford etc 2014, and J. Husa, A New Introduction to ComparativeLaw, Oxford etc 2015.
3 Nelken 2012, 313.
WIBO VAN ROSSUM
14
The second and more serious problem is that of homogeneity of a culture. The firstanthropologists studying non-western cultures brought home a concept of culture thatimplied a coherent, internally consistent system of practices and values that had clearboundaries.4 People were either ‘in’ or ‘outside’ a culture, and the assumption was that onewas a member of only one culture. This culture more or less determined the behaviour ofits members: people married and got children because their culture forced them to do so,avenged the death of a family member because their culture ‘said’ they had to do that, andfollowed their leaders because that is what their culture told them was normal. Eventhough researchers have largely left these ideas behind, determining characteristics ofsocial institutions cannot be ignored. Today social scientists may say that people ‘realizetheir identity through the institutions of a society’ and socially maintain but also slowlychange these institutions. Today researchers also say that cultures are rather stable, but doslowly change. Choices of individuals together add up to institutions, and different choicesbecause of arguments in society, discussions about ‘old fashioned’ traditions, and debateabout ‘which way to go politically’ show these institutions to incorporate different,sometimes conflicting values and routines. So, do researchers have a problem when aculture is internally inconsistent? When it has no clear psychological or imagineddemarcations of who is ‘in’ and who is ‘out’?5 My answer would be that this is only aproblem in the positivistic social sciences, not in the interpretative tradition. In thepositivistic social sciences, there is a need for hard facts, for factors that can clearly bedelineated from each other. In the interpretative tradition, a culture that is unstable andperhaps in turmoil, is all the more interesting to investigate. We should not forget that inthis research tradition, the focus is on understanding holistically what a culture is about.Debate about practices, norms, and values, then only give a better insight in what is atstake for people, how people see and define their identity, in other words how theyconstruct and reconstruct, as a group, who is ‘in’ and who is ‘out’. They reconstructbottom-up, on a daily basis, what their culture is, and that process exactly is the focus ofthe interpretative researcher. Internal inconsistencies, shifting boundaries of in- andout-group, and people shifting from one culture to another or even have their feet in twototally different ones, is part and parcel of what today’s cultures are.
The third problem with the concept of culture is not that its delineation is imagined,but rather how culture should actually be delineated. Does a national culture stop ‘beingthere’ at the borders of the country? Is it possible to speak of the local culture of a court?Is there a European culture and can that exist alongside national cultures? If so, how wouldone define the differences? In my opinion, these are wrong questions to ask, because theyrefer to cultures as reified ‘things’. Cultures do not have physical boundaries. Cultures donot ‘exist’; they are only there as social constructions, as imagined constructions inpeoples’ minds and actions (which does not mean, by the way, that imagined constructionsdo not have actual and sometimes serious consequences). This means researchers can use
4 For many examples, see S. Falk Moore (ed), Law and Anthropology, a Reader, Malden USA 2005.5 I refer to B. Anderson, Imagined Communities; Reflections on the Origin and Spread of Nationalism, 2006,
in which he argues that nations are largely reconstructed wholes in which ‘the past’ is used to forge anational identity and feeling of belonging.
CHAPTER 2 – DUTCH LEGAL CULTURE
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any delineation they like, as long as it generates interesting results, namely a betterunderstanding of how things hang together in society.
Unlike ‘justice’ that has ‘injustice’ (the negation of justice) as counterpart, the conceptof culture does not have a negative counterpart. There is ‘nature’ as a concept to contrastwith ‘culture’ (in the sense of ‘man-made’ or ‘influenced by mankind’), but there is no‘un-culture’ or ‘non-culture’; societies or groups of human beings by definition haveculture. Culture only has other cultures to contrast with, and specifically this is its mainuse in social sciences: talking in terms of cultural routines and values mainly serves toimplicitly or explicitly refer to the fact that things are different elsewhere/among otherpeople.
Legal cultureThe other term in the concept of legal culture is ‘legal’. Usually reference to ‘legal’implies the principles, acts, and specific rules and concepts of a legal system. This is alsoreferred to as ‘black letter law’. To study legal culture however, researchers need toinclude the practices of the law as well as the perceptions and evasions of the law in theactions and eyes of ordinary people. To convince people of this necessity, I usually makeuse of photos of bicycles at the train station in my home town. What is interesting in thesephotos is that there is an official sign that forbids to park bicycles outside the designatedareas and racks. The picture shows however that many are parked illegally. There aresimply too many bicycles and too few racks to park them. In the Netherlands, this is quitea ‘normal state of affairs’; legal rules ‘on paper’ differ from how they are applied ‘insociety’ and this is partly a ‘typically Dutch cultural trait’, namely a certain tolerancetowards following legal rules, and even tolerance toward disregarding rules. People whogrew up in the Netherlands have incorporated this as an acceptable and even appreciatedstate of affairs. It has become part of their ‘legal consciousness’, defined as the ‘ways inwhich law is experienced and interpreted by specific individuals as they engage, avoid, orresist the law and legal meanings’.6 Practices and perceptions of law, in other words ‘lawin action’, needs to be included in the study of legal culture.
Legal culture then, can be defined as (the holistic study of) the interrelationshipsbetween black letter law, legal practices, legal consciousness, and general values, of aspecific group of people or social institution in distinction to other groups or institutions.In practice most people will think of national legal cultures and their differences, not onlybecause in professional and lay legal consciousness law is still perceived to be national,but also because national identity still seems to play a large role in identifying who doesand who does not share one’s culture. One good argument to take national culturesseriously in research is that most data on values relate to the nationality of therespondents.7
6 S. Silbey, Legal Culture and Legal Consciousness, in: International Encyclopedia of Social and BehavioralSciences, New York 2001, 8623-8629.
7 For examples, the European Values Study on http://www.europeanvaluesstudy.eu and the European SocialSurvey on http://www.europeansocialsurvey.org.
WIBO VAN ROSSUM
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The added value of a historical perspective to cultureIn understanding black letter law and a country’s legal system, (legal) history was up untilthe last decade mainly considered relevant when it comes to tracing the development oflaw ‘in the books’ and the existing legal institutions.8 Whether or not this ratherdescriptive historical approach leads to an actual better understanding of the law, it willin any case not suffice to understand legal culture. In the first place, legal culture consistsof more than ‘law in the books’. It thus requires more than a historical analysis of whatqualifies as ‘law’ or part of ‘the legal system’ in a legal positivistic sense. Moreover, blackletter law also does not necessarily correspond with existing legal practices, values andbeliefs, which renders a mere reconstruction of this legal development in terms of existinglaws and legal institutions often useless in understanding legal culture.9
Historical analysis may however provide insight into legal culture, as culture shouldnot be perceived as static, but as susceptible to social factors in time and thus to change.Legal practices and existing values and beliefs related to the law, are shaped or influencedby society and its changing social context. This means that historical analysis with thepurpose of gaining a better understanding of legal culture should not be limited todescribing its development from a certain moment in the past onwards, but that it shouldinclude an analysis of particular factors that might have influenced legal practices andshared values, attitudes and beliefs over time.
In the case of the Netherlands, historians regard the struggle against Spanish(religious) oppression, the Dutch ‘Golden Age’ in the seventeenth century, which requiredflexibility in order to sustain further economic growth, and stagnation in the subsequentcentury as determinative factors in shaping Dutch culture.10 Pragmatism, seekingconsensus and tolerance are regarded as defining aspects of Dutch culture in general, andconsequently need also be seen as part and parcel of Dutch legal culture. To understandthe softness of Dutch law, politics, and society in the twentieth century, for example‘pillarization’ (verzuiling) requires attention. This chapter therefore also uses a historicalperspective when necessary.
3. Roots and social manifestations of ‘soft whenever possible’
The soft approach in Dutch legal culture is inter alia described as a communicative stylethat relies on persuasion rather than enforcement or punishment. It takes law to be aninvitation for dialogue between more or less equal parties (state officials, intermediaryorganizations, and citizens). ‘The legislator knowingly and willingly waives the oppor-tunity to intervene directly in social reality, and lays down in the law a fundamental value(for example equality) in order to promote a gradual change in attitude and behaviourwithin the legal community. Because of its apparent vagueness or “toothless-ness”, this
8 J.B.M. Vranken, Algemeen deel, Deventer 2014, Asserserie..9 Vranken 2014, Chapter 6.10 J.H.C. Blom & E. Lamberts (ed), History of the Low Countries, New York etc 2006.
CHAPTER 2 – DUTCH LEGAL CULTURE
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communicative style of law is often accused of producing “soft law” or even “symboliclaw”.’11
In this sense, Dutch legal culture is fundamentally paradoxical. On the one hand, itneeds rules, because rules give clarity and legal certainty. On the other hand, Dutch legalculture tends to be non-legalistic and pragmatic. Clear legislation and compliance with thelaw is thus generally considered to be necessary in maintaining societal order, but whenlaw enforcement could lead to undesirable outcomes, the possibility to abstain fromapplying those rules is deemed important as well. These ‘exceptions’ are often governedby more or less vague principles or discretion left to the competent deciding authority. Inadministrative law, this is demonstrated by the incorporation of beginselen van behoorlijkbestuur (principles of decent and fair administration) in the law. Citizens can invoke theseprinciples when they disagree with the way the administration applied law in a specificinstance. These principles include, for example, notions of ‘equal treatment’, ‘proportion-ality’ and ‘fair play’. Although there are limitations regarding when and by whom theseprinciples can be invoked and (case) law has provided some direction as to what theseprinciples entail in this administrative context, its content is still ‘open’ enough to enableflexible application in individual cases. This means that even though the density ofregulations in administrative law is quite high in the Netherlands, decentralization anddiscretion through these principles allow for flexible application when considered justifiedor reasonable. This characteristic might seem inherent to any codified legal system whererules cannot cover everything. However the Dutch administration is generally moreinclined to include individual circumstances in deciding whether a given rule should beapplied as a result of its reliance on consensus rather than enforcement. This is also visiblein criminal law, where the decision to prosecute is governed by the ‘principle ofdiscretion’ rather than the ‘principle of legality’ as in for example neighbouring countryGermany.12 This means that the state is not obliged to prosecute every crime (which wouldbe in line with the idea that every violation of the law requires enforcement), but that otherconsiderations carry weight as well in the decision to prosecute.13 In this respect, itbecomes clear yet again that the law is perceived as serving certain purposes rather thanbeing the purpose itself, and that the law should not be applied at any cost. In private law,this is to some degree different as it concerns parties on an equal footing. However alsoprivate law is diffused with open norms like redelijkheid en billijkheid (reasonableness),and thus the non-legalistic and pragmatic aspects of Dutch legal culture can be seen towork here as well.
Pragmatism – in the sense of realistically looking for solutions to problems withoutreferring too much to high ideals and basic principles – is conditioned culturally14 as wellas structurally. According to the sociologists Hofstede, Hofstede and Minkov, the
11 W. Witteveen and B. van Klink, Why Is Soft Law really Law? A Communicative Approach to Legislation,1999, to be found at https://goo.gl/Em0Ue4.
12 B. Elsner, J.-M. Jehle & M. Wade, Prosecution and Diversion within Criminal Justice Systems in Europe.Aims and Designs of a Comparative Study, in: European Journal on Criminal Policy and Research 14/2(2008), 93-99.
13 J. Fionda, Public Prosecutors and Discretion: A Comparative Study, Oxford 1995.14 J. Huizinga, Nederlands geestesmerk, in: Idem, Verspreide opstellen over de geschiedenis van Nederland,
Alphen aan den Rijn 1982, 282-315; Velema, Beschaafde republikeinen. Burgers in de achttiende eeuw, in:
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Netherlands share their feminine culture with Nordic legal cultures, ‘stressing values suchas equality, solidarity, sympathy for the weak, and resolution of conflicts by negotiationand compromise’.15
Dutch politics is necessarily based on negotiation and compromise, since no politicalparty is likely to achieve an absolute majority. As a consequence, Dutch politicians are notonly used to wheeling and dealing in seeking consensus, but also in showing respect forfundamental values of political parties.16 Moral values are always counterbalanced byeconomic considerations, the need for rules to actually work, and values from otherdomains such as social solidarity and health care. It also means that landslide legalchanges were hardly ever possible. An interesting example of this mechanism is offeredby a certain phase in politics when the Christian Democrats were not included in thegovernment coalition. Suddenly the possibilities for a new consensus emerged. A coalitionof socialists and liberals used the opportunity to regulate brothels (2000), allow euthanasiaunder a strict protocol (2001), and legalize same sex marriages (2001).
Instances of negotiation and compromise governed by pragmatic considerations canthus be explained culturally as well as structurally. This amounted to a style of politicstypical for the 50s and the 60s in the Netherlands, which again influenced later Dutchstyles of decision-making. The root of this phenomenon was called ‘pillarization’(verzuiling) and determined the character of Dutch society in general. The Dutchpillarization kept Dutch society between 1900 and the 1960s divided along horizontal –religious – and vertical – socio-economic – lines in different ‘groups’. Every group,referred to as ‘pillar’ (zuil), had its own values and beliefs. This dominated Dutch daily lifeas people usually confined both their professional and private lives as much as possible totheir own pillar. On the whole, members of the same zuil would vote for the same politicalparties, children went exclusively to schools and sports clubs belonging to their zuil, andeven the TV and radio stations were characterized by the specific pillars.17
As the need to maintain some degree of unity and coexistence was acknowledged, thissystem required tolerance,18 negotiating, compromising, and pragmatism. Lijphart refersto this as ‘politics of pacification’ (pacificatiepolitiek), with which he draws an interestingparallel with the working of international politics. This was specifically necessary in orderto enable law- and decision-making in a politically and morally dispersed nation.Especially political decisions stemming from sensitive issues required concessions fromall parties concerned. Through maintaining trust in authority, secret negotiations and aprocess of depolitisering (taking the political stings out of social issues) these politicaldecisions were made acceptable for the different social and religious groups in society.
R. Aerts & H. te Velde (eds), De stijl van de burger. Over Nederlandse burgerlijke cultuur vanaf demiddeleeuwen, Kampen 1998, 80-99.
15 F. Bruinsma, Discretion in Legal Decision Making (‘beleid’), in: D.S. Clark (ed), Encyclopedia of Law andSociety: American and Global Perspectives, Vol. 1, Thousand Oaks CA 2007, 411-415, at 412. See G.Hofstede, G.-J. Hofstede and M. Minkov, Cultures and Organizations: Software of the Mind, London 2010.
16 R. Aerts & H. te Velde, Land van Kleine Gebaren. Een politieke geschiedenis van Nederland 1780-1990,Amsterdam 1999.
17 A. Lijphart, Verzuiling, pacificatie en kentering in de Nederlandse politiek, Amsterdam 1968, 19-40.18 On Dutch ‘tolerance’: G. Mak, Gedoemd tot Kwetsbaarheid, Amsterdam 2005, 7-18, 35-56, 89-93; E.H.
Kossmann, Tolerantie toen en nu, in: Idem, Politieke theorie en geschiedenis, Amsterdam 1987, 45-58.
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Each pillar – be it Reformed, Catholic, liberal, or socialist – therefore had its own eliteswho maintained moral and social control within their own sphere. In general these elitesat the top were trusted authorities that negotiated on behalf of their pillars. This trust inauthority was essential in order for the system to function and for leaving politicians andothers who were part of the elite enough discretion to get results. The existing trust inauthority thus led to a situation in which citizens did not ask difficult questions. This madeit possible to fulfil another important requirement, namely the need for the elites to keepnegotiations and especially their compromises secret in order to avoid turmoil in theirpillar.19
Considerations other than the binding status of the law thus often play a role indeciding whether a rule should be applied. Rules should also only be applied if they servea goal, and not for their own sake. The dominant train of thought is that rules cannot covereverything, and compliance needs agreement with the people who are addressed by thoserules. Consequently, there is a sense among the Dutch that the law is not always the best‘tool’ to regulate or gain control over society, and that in those circumstances a ‘softapproach’ might prove to be more effective. This pragmatism manifests itself not only inapplying the law, but also in creating it.
BeleidThe Dutch word beleid is another instance that relates to the soft approach. It is a culturalmarker that is difficult to translate. The English term ‘policy’ only partially covers itsmeaning because it focuses more exclusively on a purposefully taken, planned course ofaction, whereas beleid also includes another, somewhat contradictory meaning. On the onehand, beleid indeed, like ‘policy’, means to manage and administer (besturen) on the basisof facts and expertise, which implies top-down planning. On the other hand, beleid meanstaking a ‘considerate’ approach (bedachtzaam), ‘preferably by hearing all those concernedand giving them a say’.20 The archaic meaning of ‘policy’ by the way also includes thissomewhat contradictory meaning of ‘prudence’ and ‘expediency’.
This implies that beleid relies on both the authority of some involved and at the sametime on communication between these authoritative actors and the other people involved.These meanings thus seem to conflict, because ‘one can either take decisions against thewishes of at least some of those concerned or one can come to an agreement based onmutual consent, which implies non-decisions in the case of a veto or resistance’, as ifleader and led are on an equal footing.21 However, beleid is a mixture of both. This leavesroom for discretion and fine-tuning to the situation at hand. Because this also generatesuncertainty, there are also downsides to beleid (see no 7).
The result of these contradictory meanings is that beleid, unlike ‘policy’, cannot bequalified as primarily consisting of top-down management by competent authorities.Rather beleid is best described as including at least some ‘voices’ of those to whom thebeleid, the exercise of power, is directed. Beleid is contextualized rule-making andrule-implementation. The more complicated and sensitive the context is, the softer and
19 Lijphart 1968, 100, 120-137.20 Bruinsma 2007.21 Bruinsma 2007, 411.
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more consensus seeking needs to be the approach in formulating the eventual rules. It usesbottom-up and top-down strategies at the same time. When rule-making is not yet possibleat a certain moment, the issue is postponed, a commission is installed to investigate andwrite up a report – until time dictates that the issue finally needs to be resolved or is notrelevant anymore. Lijphart describes this as a typical aspect of Dutch political decision-making, to which he refers as de ijskastpolitiek (literally: the fridge policy). It meansputting controversial matters on hold ‘in the fridge’ as long as the issue is not so urgentthat immediate action is required. This means that whether an issue is resolved or beleidis ‘made’ depends on both the complexity and the urgency of the matter.22
The egalitarian aspect of developing beleid that shows in the willingness ofpolicy-makers to seek for consensus with the people addressed, should not divert ourattention from the fact that the Dutch also have a rather firm tradition of trust in authority.Up to the 1960s, this could easily be recognized in the societal structure of pillarization.Although this system of segregation imploded in the 1960s and liberation from religiousdogma’s and old structures did lead to a more critical attitude towards authorities, Dutchpeople still maintain a rather high level of trust in their elites. That might be an explanationwhy initiatives such as a referendum, an elected mayor, or lay representation in theprofessional judiciary, never gained full support. For example, preferences in the 1960s fora directly chosen prime minister were 50%, for a chosen mayor 53%, and for a referendumover important issues 61%.23 In 2014, 44% in a poll had a preference for a chosen mayor.24
As for lay participation in the legal system, a survey of 2006 showed that 37% was for layparticipation, while 39% was against and 20% even ‘completely against’.25 Dutchauthorities do not seem to be very eager to act upon these figures, and the Dutchpopulation apparently is fine with that. Beleid thus combines egalitarianism, popularinfluence, and elitist rule.
PoldermodelThe third manifestation of the soft side of Dutch legal culture can be found in thepoldermodel.26 The term polder – an area where the water level may be controlled – refersto the collective Dutch struggle against the water. The notion of ‘polderen’, referring to a‘style’ of communication to achieve regulation by agreement, arose in a specific Dutchcontext. Because a large part of the Netherlands is situated below sea level, dikes werenecessary in maintaining public safety. Such a large and expensive project could not becarried out by individuals. Realization was however so important that dependence onstate-implementation or authority was not sufficient, and general cooperation was requiredto ensure compliance with regulation to protect the land against the water. This meant thatall parties involved needed to achieve some level of consensus in order to adequately
22 Lijphart 1968, 122-123.23 Sociaal-Wetenschappelijk Instituut van de V.U., De Nederlandse kiezers in 1967, Amsterdam 1967, 10.24 See http://www.ioresearch.nl/home/nieuws/artmid/445/articleid/523/meerderheid-nederlandse-bevolking-
voor-gekozen-burgemeester#.VZJVcWBjeZc (last visited 9 July 2015).25 M. Koomen, Lekenparticipatie in de strafrechtspraak. Het beeld van de Nederlandse bevolking, Amsterdam
2006, 8.26 See: H. te Velde, Het poldermodel. Een introductie, in: D. Bos and others (ed), Harmonie in Holland. Het
poldermodel van 1500 tot nu, Amsterdam 2008, 9-29.
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protect the land from being flooded. This consensus seeking needs both communicationand compromise. Metaphorically it now stands for decision-making among supposedequals on the basis of mutual trust and consensus building. The idea is that public goodscannot be possessed and defended by individuals; people need to work together for thecommon good. The support of public goods requires a specific cultural mix of consensus,egalitarianism, and what Francis Fukuyama called ‘trust’.27 In low-trust societies, such asthe United States, law is a substitute for trust. In high-trust societies, such as theNetherlands, law in action can be non-legalistic and consensual.
The strong version of the poldermodel can be recognized in areas of corporatistself-government: ‘the programmes of the welfare state such as health and social insurance,unemployment, and workers’ compensation schemes were administered by tripartitebodies consisting of representatives of employers and employees – the two groups theDutch call the “social partners” – as well as independent experts appointed by thegovernment’.28 The roots of the poldermodel can be traced back to the middle ages, whenmaintenance of the dikes became the responsibility of all the farmers in an area, but itassumed its modern form during the reconstruction after the Second World War.
The poldermodel received a boost when it was valued internationally as a ‘possiblethird way’ between capitalism and socialism in the 1990s. In 1996 and 1997, thepoldermodel was a worldwide hype: the press reported favourably about the economicsuccesses and the reduction of the welfare state, the social partners (employers andemployees) received a German price, and Prime Minister Wim Kok was given theopportunity to address the G-7 in Denver. But its esteem was prepared by the consensusthat emerged in the 1970s that the Dutch welfare state might be out of control: shortagesin the public budget increased while loopholes at the same time undermined the fairnessof the welfare policies. In the self-regulating administration of the social security system,for example, nobody had sufficient incentive not to grant disability pensions or earlyretirement plans. Employers who wanted to get rid of elderly workers, because they wereoften sick or simply undesirable, could remove them from the payroll by offering longsick-leave or early retirement. Both could easily agree to a benefit scheme, as the costswere to be paid by the collective insurance scheme. Doctors were inclined to help, and thesocial insurance administration found it all but impossible to resist the consensualdetermination of the employers, employees and medical officers to spend the collectivefunds.
In order to avert the threat of direct government intervention, employers and unionsconcluded the Wassenaar Agreement of 1982. Newly adopted measures effectivelylowered spending out of the public budget.29 When both employers and employees gaveup control over the implementation of social security at the beginning of the twenty-firstcentury, a weaker version of the poldermodel supplanted the strong version of corporatistself-government.
27 F. Fukuyama, Trust: The Social Virtues and the Creation of Prosperity, New York 1995.28 Bruinsma 2007, 413.29 See http://www.cbs.nl/en-GB/menu/themas/macro-economie/publicaties/artikelen/archief/2007/2007-2321-
wm.htm (last visited 19 June 2015).
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The weak version of the poldermodel can be recognized in diverse forms ofinstitutionalized consultation. In those cases, the government formally is the only playerwith the powers to end the discussion and – in theory – can take decisions against thewishes of the other participants. In practice however this hardly ever happens. One of theprime examples of institutionalized consultation is the Social and Economic Council ofthe Netherlands (Sociaal-Economische Raad, SER).30 In theory, it functions as an advisorybody for Parliament and government. It is very influential, however, when the compositeparts – employers, employees, and independent experts – agree on the socio-economicbeleid for the years to come.
In summary, Dutch legal culture in many of its constituent parts is characterized by asoft approach. This approach shows in a pragmatic attitude in solving social problems atthe lowest level possible, while including elite and social actors of ‘the work floor’. Thereis a display of equality, and an acceptance that authorities ultimately will know best. Thereis sensitivity for the fact that all actors need each other; in negotiations actors see the needto add water to the wine. Rules are important, but should only be applied when necessary,and the administration has a lot of discretion in their application.
4. The ‘health frame’ in coping with illegal drugs
Drug abuse crimes – like abortion, euthanasia, alcoholism, gambling, and much more –can be labelled as ‘crimes without victims’.31 Such crimes refer to strongly demandedgoods or services, where the only victims are the people who are freely and willinglyinvolved, while the lack of a complainant makes criminal law difficult to enforce. Sincethere are no sound practical reasons to outlaw crimes without victims, Dutch legal cultureusually in these kinds of fields calls for a policy (beleid) of non-enforcement. For decadesthe law in the books concerning drugs symbolically reflected moral condemnation, whilethe practice was permissive (in Dutch: gedogen, literally: tolerating). Pragmatism workswith a sliding scale: ‘at the one end a blind eye is turned to vices with minor ramifications,such as drug abuse in private, and at the other end strict law enforcement is called forwhen the stakes are high, as in the case of the production and trade in hard drugs. In theabsence of a yardstick, the in-between cases are of course the difficult ones: what is theapproach to hard-drug addicts, and to the suppliers of soft drugs? In a pragmatic approachthese questions are tackled one by one and by trial and error, trying to strike a balancebetween a counter-productive zero tolerance and an unproductive wait-and-see attitude.The facts of a situation are quite often decisive, resulting in an unfounded and half-hearted“yes” sometimes and “no” at other times.’32 Dutch pragmatism prefers these inconsisten-cies to blind rule enforcement.
In the 1970s, a committee of experts, chaired by a neurologist, formulated the Dutchpolicy of tolerance towards soft drugs. The committee refuted the stepping-stonehypothesis, which held that a cannabis user runs a high risk of becoming a heroin user, and
30 See https://www.ser.nl/en/.31 E.M. Schur, Crimes without Victims: Deviant Behavior and Public Policy, Englewood Cliffs NJ 1965; E.M.
Schur and H.A. Bedau, Victimless Crimes: Two Sides of a Controversy, Englewood Cliffs NJ 1974.32 Bruinsma 2007, 412.
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recommended that a distinction be made between soft and hard drugs, each with a differentapproach. The idea was to keep the markets separated. Since the criminal law does notoblige a prosecutor to prosecute a case, guidelines (beleid) for non-prosecution wereformulated as early as the 1960s. Guidelines that set explicit standards for prosecution andnon-prosecution were adopted in 1976 by the most left-wing government in Dutch history,the Den Uyl coalition government (1973-1977). At a crucial moment, a ChristianDemocrat changed the discourse style from criminal justice to public health when shedeclared that it was more Christian to help addicts than to punish them. These prosecutionguidelines went beyond the distinction ‘soft’ and ‘hard’ drugs by adding a distinctionbetween consumption and production. Possession of soft drugs was considered negligibleup to 30 grams, small amounts of hard drugs could be ignored except in case of priorconvictions; occasional dealing within a pattern of addiction would be penalized withfines, yet systematic and quasi-professional dealing, especially importing and exporting,was penalized with stiff prison sentences. In 1996, new prosecutorial guidelines preservedthe distinction between soft and hard drugs, but the permissible amount of soft drugs forpersonal use was reduced from 30 grams to 5 grams.33
This is only half of the story, that of law in books. In practice, the police anticipatedthe beleid of the prosecutors and took it as a starting point for setting their own priorities.They tried (and try) to get professional dealers in hard drugs convicted, but they hardlytook (take) any action if they came (come) across small-scale dealing in hard drugs. It wasand still is difficult to say when and where, and as a consequence also why and why not,the law is enforced.
The borderlines between permitting the small-scale use of soft drugs and prosecutinglarge-scale dealing in hard drugs are continuously challenged. What should be done withhard-drug addicts whose welfare benefit is not sufficient to cover the daily costs of theiraddiction and who therefore turn to crime? A fine makes less sense than a free andstate-controlled distribution of the heroin substitute methadone, or even the freedistribution of heroin. A real life experiment among 430 addicts between 1998 and 2000revealed that free distribution of heroin compared to the substitute methadone resulted insignificantly less criminal behaviour.34 The quality checks on ecstasy pills at house partiesin the 1990s up to today are rationalized by the idea that if one cannot eradicate illegalpractices, it is better to monitor them in the interests of public health. The same argumentwas used in 2013 to legalize growing Dutch hemp: health concerns over the quality ofillegal weed that is supplied to the back doors of ‘coffeeshops’.
A ‘coffeeshop’ is a bar that serves soft drugs rather than coffee. This very Dutchinstitution resulted from the prosecution guidelines of 1996 that tried to regulate drug useand separate soft drugs from hard drugs. A coffeeshop had to meet specified requirementsto be tolerated: no sale of hard drugs and alcoholic drinks, no sale to minors, a maximumof 5 grams for each transaction, not more than 500 grams of soft drugs in stock, no
33 See more extensively T. Boekhout van Solinge, Dealing with Drugs in Europe: An Investigation ofEuropean Drug Control Experiences; France, the Netherlands and Sweden, The Hague 2004.
34 M.G.W. Dijkgraaf et al, Cost Utility Analysis of Co-Prescribed Heroin Compared with MethadoneMaintenance Treatment in Heroine Addicts in Two Randomised Trials, in: British Medical Journal 330, no7503 (June 2005), 1297-1300.
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advertising, no nuisance to the neighbours, and (in some municipalities) no sale tonon-inhabitants of the Netherlands.
A total of 103 out of 415 municipalities in the Netherlands have one or morecoffeeshops. Most of them are in the larger cities, mainly in Amsterdam. Fully aware ofthe weak public support for the coffeeshops, local authorities have reduced their numberby stricter implementation of the rules from 1,004 in 1995 to 617 in 2012. Amsterdam inparticular witnessed a dramatic decline: from 450 in 1995 to 208 in 2012. The rules thataccount for this reduction are that a coffeeshop should not be tolerated within 250 metresfrom a school, that coffeeshops should not open in living areas, and should not be too closetogether.
The coffeeshop has lost much of its innocence as a symbol of the underground youthculture of the 1970s and 1980s. About 80% of the licence holders in Amsterdam and Venlo(a provincial town in the south of the Netherlands near the border with Germany) werediscovered to have an average criminal record of six offences. Also, drugs tourism couldnot be avoided in Europe without borders. Almost all customers of the coffeeshops nearthe borders came from Belgium, France, and Germany, until municipalities could restrictsale to inhabitants of the Netherlands. The biggest coffee shop with a licence for a bar anda restaurant, Checkpoint in Terneuzen, near the border with Belgium, attracted more than900,000 tourists a year who spent an estimated EUR 7 million until it was forced to closein 2008. Moreover, with so much local experience in vegetable gardening, it did not takelong to produce nederwiet (literally: Dutch weed) of potent quality, thus blurring thedistinction between soft and hard drugs. After the ban on tobacco smoking in pubs in2008, coffeeshops had to find other ways for consumption on the spot than smoking theusual blend of nederwiet and tobacco.
Apart from coffeeshops, there used to be grow-shops that legally sold seeds andequipment for growing marihuana, and smart shops that used to sell hallucinogenicmushrooms. Grow-shops have become illegal as per March 2015. The suicide of a 17-yearold French girl in Amsterdam in 2007 provided the minister of Public Health withsufficient support for putting 126 types of hallucinogenic mushrooms on the list ofproscribed drugs the following year, depriving smart shops of their main source of income.
An important question regarding the Dutch drugs policy is how effective it is: howmany drug users are there?, how many problems do they cause and how much crime dothey commit?, what about health effects – the main reason for the liberal policy? Recentfigures say that an average of 9% (boys) and 6% (girls) smoke ordinary cigarettes on adaily basis in the age range of 12 to 18. The percentages of children who smoke have beendecreasing ever since the second half of the 1990s.35 When it comes to drinking alcohol,the average at the same age range is a little over 40%. When 16-18 years old were askedwhether they drank alcohol ‘in the last month’, about 80% answered ‘yes’. Figures from1992 onwards suggest a slight increase until 2003 and a slight decrease until 2011; in otherwords: drinking alcohol in this age set is rather stable.36 Cannabis use is a different storycompared to alcohol. On average in the same age set, 11% of the boys and 5% of the girls
35 J. Verdurmen et al, Jeugd en riskant gedrag, Kerngegevens uit het peilstationsonderzoek scholieren 2011,Utrecht 2012, 26 and 35.
36 Jeugd en riskant gedrag (2011), 40 and 55.
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said they used cannabis in the last month. Cannabis use increases strongly from the ageof 15 onwards, and rises to over 20% with 16-18 years old boys (less than 10% with girls).Figures suggest that usage increased until 1996, then slightly declined until 2003, andremains stable since then. Hard drugs use ‘in the last month’ is less than 1%. Among thehard drugs, xtc is most popular (2.6% ‘ever used’), less popular is speed (1.8% ‘everused’) and cocaine (1.7% ‘ever used’), while heroine and mushrooms are least popular(0.6% and 0.4% ‘ever used’). Long-term figures show an increase in usage until 1996, adecrease since then, and stability since 2007.37 Usage of drugs in general (15-65 years) in2005 was 3.3% cannabis, xtc 0.4%, cocaine 0.3%, and heroine too small to measure. TheNetherlands in 2005 counted between 24,000-46,000 problematic addicted hard-drugusers and about 6,500 problematic addicted cannabis users (other drugs hardly count anyproblematic addicted users).38 In 2013, almost 10,000 addicted heroine users sought help,over 6,500 cocaine users, cannabis users a little over 10,000, and a little over 30,000alcohol addicts.39
Concerning drug related crime, in 2013 17% of the prison population was serving asentence related to (almost only hard) drugs, almost 6,000 cannabis farms werediscovered, and 30 synthetic drugs laboratories (mainly xtc). Drug users cause othercrimes as well, like burglary, theft, use of violence in public, and destruction of publicproperty. Alcohol users are less criminal as compared to hard-drug users (1,500 againstover 5,000).40
Comparative research shows the position of the Netherlands in Europe. According tothe European Drug Report Trends and Developments 2015, the Netherlands has 25.7% lifetime cannabis users (age 15-64), while Belgium had 14.3%, Denmark 35.6%, and France40.9%. Drug induced deaths for the same countries are 10.2 (deaths per million) for theNetherlands, 10.5 for Belgium, 60 for Denmark, and 6.8 for France.41
The most interesting thing is that clear conclusions are hardly possible.
5. Euthanasia and ‘those who suffer’
While the Dutch drugs beleid constantly runs the risks of losing control over the drugmarket, the legalization of euthanasia is much more balanced. This example involves amore respectable group, namely doctors who assist in terminating a patient’s life. Terminalcare is part of every medical practice of the general practitioners who provide the primaryhealth care in the Netherlands. Most requests for euthanasia are dealt with in this context.
A new Euthanasia Bill was put into effect in 2002. Under the first paragraph of Article293 of the Criminal Code someone who takes the life of another at the explicit and earnestrequest of the latter is still threatened with a maximum sentence of twelve years
37 Jeugd en riskant gedrag (2011), 75 and 79.38 D. van der Gouwe, E. Ehrlich and M.W. van Laar, Het drugsbeleid in Nederland, Utrecht 2009, 16-17.39 D.J. Wisselink, W.G.T. Kuijpers and A. Mol, Kerncijfers verslavingszorg 2013, Houten 2014, 29, 35, 42
and 48.40 Nationale Drug Monitor 2013-2014, Utrecht etc 2014, 244, 248 and 264.41 European Monitoring Centre for Drugs and Drug Addiction, European Drug Report 2015: Trends and
Developments, Lisbon 2015, 75-80.
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imprisonment. But a new second paragraph exempts a doctor from criminal liability if hehas met criteria that have been developed in the case law and informs the municipalcoroner immediately after the lethal act.
The non-prosecution beleid concerning euthanasia emerged from an interactionbetween the Supreme Court of the Netherlands (Hoge Raad), the public prosecutors, andthe professional association of doctors (Royal Dutch Medical Association, KNMG). Thegovernment wanted to know more about the practice of euthanasia before embarking onnew legislative attempts, and needed the cooperation of doctors. Asked for advice on twoproposed Acts (one proposed by the government and the other a parliamentary initiative),the Raad van State (Council of State) found it almost impossible to formulate substantivegrounds for euthanasia; it advised that more case law should first be awaited.42 The KNMGwas willing to cooperate in return for clear prosecution guidelines, so that doctors whoassisted terminally ill patients to end their life did not have to fear prosecution. This was(and is) not equivalent to a right to non-prosecution, because the public prosecutortheoretically decides on the merits of each case. The most important condition fornon-prosecution is that the doctor has followed the procedure in order to ascertain thepatient’s death wish. This wish must be verified by a second practitioner. These and otherrequirements have been developed in the case law of the Supreme Court.
Five regional advisory bodies, consisting of three experts (in law, medicine and ethics)were established in 1998 to evaluate medical euthanasia decisions. They concluded that inonly 3 of the 2,123 euthanasia cases that were filed in 2000 a wrong decision was made,but none of these cases were prosecuted. The purpose of the advisory bodies is to persuadedoctors to report more truthfully, in order to bring euthanasia out into the open. Thisinstitutional strategy seems to be effective; reported cases of euthanasia rose from 2.5%of all deaths in 2001 to 2.8% in 2012. A 2013 survey among 866 doctors, however,showed that in cases of terminally ill patients 10% admit that they sometimes give a higherdose of medication than is strictly required, while 7% said they started medication beforetaking action was strictly necessary. This indicates so-called under reporting and theexistence of a ‘dark number’. The trend towards full reporting however seems to continue,since in 2013 the number of reported cases rose to 4,829, which is an increase of 15%against 2012.43 In 4,501 cases of those 4,829 reported, it was indeed euthanasia, while inmost others it was assisted suicide. Almost all cases were reported by local medicalpractitioners (the so-called ‘huisartsen’ who know their patients very well). In a largemajority of cases, euthanasia requests were from cancer patients. Life expectancy in mostcases was less than one month. The commissions concluded in five cases that doctors hadnot acted according to the criteria of due care. Interestingly, a report from 2010 concludedthat about half of the requests for euthanasia are not executed. Of these, about 50% of thepeople already died when the request was considered. A significant number of the requests
42 See J. Griffiths, H. Weyers, and M. Adams, Euthanasia and Law in Europe, Oxford 2008.43 See https://www.euthanasiecommissie.nl/overdetoetsingscommissies/jaarverslag/ and https://www.euthana
siecommissie.nl/Images/Annual%20report%202013_tcm52-41743.pdf for the full report in English (lastvisited 18 June 2015).
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are turned down for not fulfilling the criterion of ‘unbearable suffering’ (about one in sixof all requests for euthanasia).44
6. Paternalism towards parenting
Dutch family law, and especially the regulation of parenting after divorce, for a long timewas characterized by a pragmatic approach that followed the routine of conventionalmarriage life. Until 1998, the law granted only one parent custody after divorce, whichwas usually the mother. Only in 1995, the other parent was granted a right to see hischildren – before that, and only since 1971, the judge was allowed to grant contact rights.Most of the time that law remained a dead letter; the general outcome after a divorce wasthat mothers took care of the children and maybe worked part-time, while fathers had afull-time job, paid alimony, and saw their children once every two weekends. Dominantideology held that shared parental rights after a divorce could only lead to quarrels, whichwas not in the interest of the children. Arguments tended to be based on a concern for thestable development of children, and the non-enforceability of social relationships.45
Somewhere halfway in the 1990s this picture started to change. Fathers increasinglystood up for their rights and referred to the right to family life granted by the EuropeanConvention of Human Rights (Article 8). Over time the law changed and continuedcustody of both parents after divorce became the rule in 1998, and contact rights werebetter secured.46 This situation of ‘legally continued parenthood’, however, appeared notto be the end station. The Dutch state increasingly became paternalistic in the sense thatdivorced parents, even if they had not been formally married and even when they heldconflicting views, should strive towards a situation of ‘continued co-parenthood’ in whichboth parents have an equal say and actually should contribute equally to raising theirchildren, even if this was not the case during the marriage.47 In 1998, the Ministry ofJustice supported and financed experiments with divorce mediations. The Child Care andProtection Board (Raad voor de Kinderbescherming) then started to use information fromthese mediations in their advice to courts about visiting rights.48 Judges sometimes obligeddivorcing parents to try mediation.49
44 A. van der Heide et al, Sterfgevallenonderzoek 2010. Euthanasie en andere medische beslissingen rond hetlevenseinde, Den Haag 2012.
45 See more in C.G. Jeppesen de Boer & W. van Rossum, Regulering van ouderschap na scheiding: Nieuwrecht en nieuwe mentalité de gouvernement?, in: K. Boele-Woelki & S. Burri (ed), De rol van de staat infamilierelaties: meer of minder?, Den Haag 2015, 7-32.
46 C.G. Jeppesen de Boer, Joint Parental Authority, Antwerpen 2008, 95-99.47 H. Lenters, De rol van de rechter in de echtscheidingsprocedure, thesis Leiden, Arnhem 1993; Anders
Scheiden, rapport van de Commissie Herziening Scheidingsprocedure, Den Haag 1996; Kamerstukken 29520, Tweede Kamer 2003/2004.
48 B.E.S. Chin-a-Fat and M.J. Steketee, Bemiddeling in uitvoering. Evaluatie Experimenten Scheidings- enOmgangsbemiddeling, Utrecht 2001; Raad voor de Kinderbescherming, Normen 2000. Beleidsregels metbetrekking tot de werkwijze van de Raad voor de Kinderbescherming, Den Haag 2001.
49 E. Spruijt, M. Mallens, M.M. Mos, G. Topper, R. Vugt and C. Van Leuven, Onderzoek naar effecten vanvrijwillige en forensische scheidingsbemiddeling, in: Echtscheidingsbulletin 2004, 37-40.
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The paternalistic norm of continued co-parenthood is increasingly valued these daysespecially in political and policy circles, despite a lack of empirical evidence that childrenare better off, and despite protests from legal practitioners and academics that the normactually in many cases deviates from the practice that existed during the marriage.
Another ideologically infused recent norm is the obligation for divorced parents todraw up a parenting plan that describes how they will divide the care over their children.Since 2009, the parenting plan is legally required before divorce proceedings can bestarted. It leaves no doubt that the requirement to draw up a parenting plan led to moreconflicts among parents who already fight over their relationship, and can also be used tocreate new conflicts. Fathers who traditionally worked while their wife took care of thechildren, now go to court to demand an equal share in raising their kids. The plan is alsohard to enforce. Empirical evaluations of the parenting plan conclude that there is noevidence that children have a better contact with both parents, perceive fewer conflicts, orare emotionally more stable than in divorce cases before 2009.50 Dutch government andpolicy-makers in the case of family law seem to have drifted – maybe caused by the feltneed to be firm and set rules – from the characteristic Dutch legal cultural approach ofpragmatically working towards a beleid and law that practically work. However,resistance to paternalism is also there, apparently because politicians who devised the newapproach towards parents did not follow the poldermodel. It was too much a politicalproject, instead of one that came about through consensus. The scientific evaluations of thenew ‘governance’ of families show that the paternalistic approach does not work as itshould and is not effective. The first calls for cancellation are already heard, while thecourts right from the beginning seemed to have taken the new requirements with a grainof salt.51
7. Debating the soft approach
The contrast between the approach of command and control on the one hand, and beleidon the other, is strongest in the ‘administrative policy of tolerance’ (gedoogbeleid). Itmeans that administrators publicly accept deviations from the letter of the law. This policyof tolerance is adopted as a fall-back in cases where beleid does not work. ‘Too muchgedoogbeleid results in a shadow administration, which becomes an informal legal orderof its own. It consists of written administrative decisions that allow individuals andcorporations to transgress the law, judges to uphold these decisions, and academics tostudy and comment on the grey administrative policy as if it constituted the official legalorder.’52
One particular event brought two leading cases before the Dutch Supreme Court.Contrary to the rules, a local official had allowed polluted dredging to be illegally dumped.The Supreme Court ruled that civil servants are not liable to punishment if the wrongdoing
50 M. Tomassen-Van der Lans, Het verplichte ouderschapsplan: regeling en werking, thesis Amsterdam VU,Den Haag 2015; M.J. ter Voert & T. Geurts, Evaluatie ouderschapsplan: Een eerste verkenning, Den Haag2013.
51 See Jeppesen de Boer & Van Rossum 2015, especially 21-24.52 Bruinsma 2007, 415.
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fits within the pattern of the municipality’s gedogen, and that municipalities are not liableto punishment if the offence has taken place in the context of a public task (the localcouncil is supposed to exercise control).53
The consequences of the Supreme Court decisions were revealed by two catastrophes.A storage place for fireworks exploded in the city of Enschede in the year 2000.Twenty-three people died, and part of the town was destroyed. At least two questions needto be asked. Why was there such a storage place in the middle of a living area? Theanswer: it had been there for a long time and acquired some leverage on the municipalitybecause of its importance for the local economy and the labour market. What about theofficial licences required? The answer: the factory had licences for only three storagecontainers, but another four were tolerated, of which one officially. Only the managers ofthe fireworks company were convicted.
In a second disaster fourteen youngsters lost their lives and over two hundred wereseriously burnt on New Year’s Eve of 2001 when a fire broke out in an overcrowded barin Volendam that lacked the proper emergency exits. It turned out that the manager did notpossess the required permits, but had been allowed to continue his business because in thesmall and close-knit fishing village of Volendam enforcement of rules is more difficultthan in a more anonymous city.
In both disasters, the prosecution refused to prosecute civil servants because of thecase law. Only the psychological consequences of the catastrophes were addressed.54
Perhaps polderen in order to develop rules and informal practices for complex situationsis the best way forward in Dutch legal culture. The cases of Enschede and Volendamhowever make clear that when things go wrong, all of the actors involved shareresponsibility, but municipality actors escape liability. This allows for the conclusion thatthe concept of beleid (and gedogen and polderen) is not only hard to understand, but evenharder to defend. Since culture tends to reproduce itself, however, this characteristic ofDutch legal culture will remain for some time to come.
The gedoogbeleid has also raised ideological and political discussion. Representativesof conservative political groups have described it as a left-libertarian excess. They seecoffeeshops in particular as examples of morally individualist and non-conformist valuesthat characterize the culture of the 1960s and 1970s. A countermovement against thismorality is typical for new rightist movements, and conservative parties tend to criticizethe gedoogbeleid for soft drugs as a sign of weak, ‘leftist’ government. On the other hand,resistance to the Dutch policy of administrative tolerance with regards to euthanasia camefrom faith-based political groups. Peter Mascini and Dick Houtman have argued that suchresistance is not typically ‘rightist’ or ‘conservative’.55 ‘Even though conservatives aremore likely to oppose administrative tolerance as a general policy type, this is merelybecause they associate it with the toleration of illegal activities by marginal individuals.Whereas they do oppose the latter more than political progressives do, the latter are, for
53 Hoge Raad 23 April 1996, NJ 1996 513 ‘Pikmeer I’ and 6 January 1998, NJ 1998 367 ‘Pikmeer II’.54 A committee, chaired by M. Oosting, sometime national ombudsman, looked into the Enschede disaster,
and a committee, chaired by Queen’s Commissioner J.G.M. Alders, investigated the Volendam disaster.55 P. Mascini and D. Houtman, Resisting Administrative Tolerance in the Netherlands: A Rightist Backlash?,
in: British Journal of Criminology (2011) 51 (4), 690-706.
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their part, more critical than conservatives about the toleration of illegal activities byofficial agencies’. In other words, the problems with gedoogbeleid cannot be reduced toa political controversy between political ‘right’ and ‘left’. Paradoxically, only polderencould help to get rid of the problems in Dutch legal culture, but polderen at the same timecontinues them, because it is a part of the problems. Like with the Möbius strip.
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