Constitutional Adjudication in the Era of Globalization: The Netherlands in Comparative Perspective
11 Pages Posted: 22 Nov 2011 Last revised: 10 Sep 2015
Date Written: November 22, 2011
This brief essay is devoted to the paradox of constitutional openness to globalization and the internationalization which comes with it, and the prohibition to review acts of parliament against the Basic Law in the Netherlands. Firstly, the Netherlands constitutional order is located within the British-Scandinavian family of constitutional traditions, rather than the continental tradition. This reflects on the position of constitutional adjudication, although there are within this family some notable variations in the powers of courts with regard to constitutional matters.Next we explain how the power of courts in the Netherlands to review the compatibility of acts of parliament against directly effective treaty provisions has turned these into sources of national constitutional law, both in theory and in practice. Subsequently, we briefly discuss the prime motive for a pending proposal to abolish the prohibition to review acts of parliament against the Basic Law, which is primarily justified by reference to the power to review them against international treaties; in other words - rightly or wrongly - internationalization is the reason for broadening the judicial review powers of courts. We reflect on the necessity of changing our concepts of constitutional review prevalent in Europe in light of a broadening of sources of constitutional law which also occurs in the continental European tradition. This should make us rethink judicial review in the globalizing context.
In conclusion, we reflect on the paradoxical nature of globalization expressed in the catchphrase ‘the global is local’, and how it plays out in the political mood of the moment as regards the criticism of European courts, especially the European Court of Human Rights.
Keywords: judicial review, comparative constitutional law, globalization, European law
Suggested Citation: Suggested Citation