Editorial - Dutch Constitutional Law in a Globalizing World
5 Pages Posted: 5 Apr 2013
Date Written: March 27, 2013
In an era of the ‘globalization of constitutional law’, characterized by trends such as a revival of formal constitution-making and the rise of constitutional review as a ‘must have’ for constitutional democracies, the case of the constitutional order of the Netherlands stands out. In an apparent contrast, the country is known for having a monist legal order that is open to external influences, yet is one of the last bulwarks to maintain a prohibition on constitutional review by the judiciary. This means that while the courts are prohibited from applying the Constitution to any Act of Parliament, they are enjoined to review every Act of Parliament for compatibility with provisions of international law that are ‘binding on everyone’. The doctrine of monism is so deeply rooted in the country’s legal culture that all national law, including the Constitution, is seen as being hierarchically inferior to international law. This attachment to monism also explains why the Netherlands has not been confronted with constitutional headaches as to the relationship between (national) constitutional law and European Union law to the extent that many other European jurisdictions, such as the United Kingdom and Germany, have. After all, the stance that binding provisions of international law automatically – i.e. as international law, without further domestic implementation – become part of the Dutch legal order is well internalized. As ingrained as monism is to Dutch legal practice and culture, so too is the bar on constitutional review that has been present in the Constitution (Grondwet) ever since 1848, having survived every constitutional revision to date. This feature of the country’s constitutional law is as important to understanding the national legal order as monism is to understanding the country’s place in Europe and beyond. The bar on review is central to studying the role and nature of the Constitution, its interpretation as well as the relationship between the courts and the legislature.
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