The Dutch Supreme Court: A Reluctant Positive Legislator?

Abstract

The Dutch differ from most of their European neighbours in that their legal system does not involve concentrated review by a specialized constitutional court. In this contribution we will describe the way the Dutch courts have – in a sometimes rigorous, sometimes cautious and sometimes downright activist way – engaged in rights review of parliamentary legislation. As we will note, the case law of the highest courts shows a tendency to assume a positive lawmaking role in a limited number of cases. Yet, simultaneously the courts have gradually adopted a cautious doctrine to draw a line between, what they consider to be, acceptable and illegitimate judicial lawmaking. Although, as we have observed, it is not a constitutional court, our account will focus on a specific court, called the Hoge Raad (literally: ‘High Council’). It is usually referred to as the Supreme Court of the Netherlands. As the highest court in civil, criminal and taxation cases, it ultimately rules on the lawfulness and interpretation of statutory law in a majority of cases. However the Court has a very limited jurisdiction over the administrative courts. This particular field of law has its own highest courts (most notably the Administrative Jurisdiction Division of the Council of State) carrying out a similar lawmaking role.9 For the sake of clarity, we will generally limit our account here to the case law of the Supreme Court. The highest administrative courts usually follow a comparable approach and use similar terminology when it comes to their constitutional position with regard to judicial lawmaking.

Keywords: constitutional court, Dutch, lawmaking, Hoge Raad, supreme court, administrative law, constitutional law