Finishing the Work Begun by the French Revolution: A Critical Analysis of the Dutch Supreme Court Judgment on the Political Reformed Party and Passive Female Suffrage
Posted: 24 Feb 2012
Date Written: March 1, 2011
On 9 April 2010, the Dutch Supreme Court ruled that the state is obliged to take effective measures to put an end to the Political Reformed Party’s (Staatkundig Gereformeerde Partij; SGP) refusal to grant women passive suffrage on biblical grounds. Interestingly, on 5 December 2007, the Council of State, the highest administrative court in the Netherlands, had taken a different position, emphasizing that there was no real limitation of passive female suffrage in this case, as women could either join one of the numerous other parties that do allow them to be candidates for representative positions or start a party of their own. How is it possible that two high courts can, within a reasonably brief time period, reach partly opposing conclusions, and what explains the recent ruling by the Dutch Supreme Court? In the first section of this article, I seek to answer these questions with the help of a normative framework for balancing conflicting human rights, and problemize the legal-political choice in favor of the concept of positive liberty that the Supreme Court appears to have made. The article then looks at the measures the state is likely to take in response to the judgment, given that ensuring appropriate forms of internal party organization and political behavior is arguably the most controversial purpose of state law concerning political parties. In the article’s conclusion, I suggest a form of constitutionalism for divided societies as a possible middle ground between positive and negative freedom, procedural and substantive democracy, and formal and substantive equality.
Keywords: Political Reformed Party, passive female suffrage, balancing conflicting human rights, state law concerning political parties, procedural and substantive democracy
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