Adams-Schyff Dutch Constitutionalism
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Tilburg University Constitutional culture in the Netherlands Adams, Maurice; van der Schyff, Gerhard Published in: Constitutionalism and the rule of law Publication date: 2017 Document Version Version created as part of publication process; publisher's layout; not normally made publicly available Link to publication in Tilburg University Research Portal Citation for published version (APA): Adams, M., & van der Schyff, G. (2017). Constitutional culture in the Netherlands: A sober affair. In M. Adams, A. M., & E. Hirsch Ballin (Eds.), Constitutionalism and the rule of law: Bridging idealism and realism (pp. 358- 385). 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Download date: 30. sep. 2021 lU il-i$ 29.;: tcrtsdir$ CONSTITUTIONALISM AND THE RULE OF LAW Bridging Idealism and Realism Edi : MAURICE AMS ,"i Tilburg ANNE E ERN B ALTI N Tilburg of Amsterdanr Cruvrnnrpcn IINTVERSIIY PRESS lfilllliiitll.sD 358 :r::i-i:j.r',i:ti L2 Constitutional Culture in the Netherlands: A Sober Affair MAURICE ADAMS AND GERHARD VAN DER SCHYFF Introduction Political Power and the Governmental Process, by Karl Loewenstein, is one of those rare pieces of twentieth-century European scholarship that explicitly calls to attention the practical significance of constitutions. Writing in the 1950s, Loewenstein was interested in 'the concordance of the reality of the power process with the norms of the constitution'.1 An ideal constitution, according to him, is one where the norms of a constitution are faithfully observed: its norms govern the political process, or the power process adjusts itself to the norms. Loewenstein calls such a situation 'normative constitutionalism' and compares it to a tailor-made suit. This he distinguishes from'nominal constitutional- ism'where the desired fit ofthe'suit'has yet to be achieved, and'semantic constitutionalism'where the constitution is meaningless in practice, such as under juntas.2 Loewenstein also noted the lack of attention for the dynamics that was conducive for the achievement of normative constitutionalism and was very aware of the fact that a constitution does not operate automatically once it has been adopted. 'To be a living constitution, that is, lived up to in practice by power holders and power addressees, a constitution requires a national climate conducive to its realization.'3 Such a statement provokes t K. Loewenstein, Political Power and the Governmental Process (Chicago/London: The University ofChicago Press, 1957 (2nd edition 1955)), pp. 147-8. 2 There are of course many other (overlapping) constitutional typologies possible. E.g. on the basis of author: Plato, Aristotle, Cicero, Montesquieu, Hobbes, Rousseau, Bryce, Wheare, Srong, Azkin, etc. Or by period: Antique, medieval, Modern, etc. Or by political ideology liberal, Marxist, etc. Or by physical appearance: long or short, with or without prearnble, with or without judicial constitutional review, uni- or multi-documentary. Or by forms ofstate: federal, centralised or decentralised, etc. 3 loewenstein , Political Power, p. 148. 358 1iq :r :ii. {:i 1,:^ CONSTITUTIONAL CULTURE TN THE NETHERLANDS 359 questions ab<lut the dynamics between constitutional law and socio- political practice, or between the formal and material validity of a consti- tution, Loewenstein, a fewish dmigr€ from Nazi Germany who became an American citizen,a was troubled by these questions, and was in his days one of the few scholars who called for more systematic attention for them.s In this chapter we want to discuss this theme in the context of Dutch constitutional culture.6 What role, if any, does the Dutch Constitution play in channelling and/or constraining the political state of affairs? And is the Dutch Constitution capable of governing the dynamics of the political power process? These questions are highly relevant, since constitutions are considered to be the ultimate means of building and sustaining a just and stable politico-institutional order. A terminological note is apt here. In this chapter we use 'Constitution' as referring to the actual Dutch document known as such. As Martin Krygier notes in his chapter to this volume, a constitution is about the way public power is constituted; it has to do with the legal architecture and frame of a polity (institutional design, foundations and structure), as well as the character of its major institutions and their occupants, their relations among themselves and with the subjects of power.t Constitutionalism, then, refers to the way the exercise of such power is constituted, made up.S As Krygier also notes, if a constitution is to a Loewenstein was trained as both a lawyer and a political scientist. For an intellectual biography, see M. Lang, Kar! Loewenstein. Transatlantischer Denker der Politik (Stuttgart: Franz Steiner Verlag, 2007) (Cerman). 5 To be sure, today there is more attention than ever before for the lypes of - interdisci- plinary - questions Loewenstein posed. The work of for exarnple T, Ginsburg c.s' is relevant here. See his The Endurance of National Constitutiotts (Cambridge University Press, 2009) (together with Z. Elkins and I. Melton). But this doesn't preclude the fact that' in European academic circles at least, a specifically legal approach still seems dominant. See A. von Bogdandy, 'Comparative Constitutional Law: A Contested Domain' in M. Rosenfeld and A. Sajo (eds.), The oxford Handbook of Comparative Constitutional law (Oxford University Press, 2012), p.28. 6 Loewenstein, as we saw, taiks about a'climate' in this context' 7 For the purposes of this chapter this also encompasses the rule of law, which for us encompasses fundamental rights, judicial review, the separation of powers, as well as a variety of governance structures. Cf. M. D. McCubbins, D. B. Rodriguez and B. R Weingast, 'The Rule of Law Unplugged', Emory Law lountal,59 (2010), 1455. We thus use a substantive conception of the rule of law. On the distinction between formal and substantive conceptions, see B. Z, Tamanaha, On the Rule of Law' History' Politics, Theory (Cambridge University Press, 2004), pp. 9l-l13. E See Chapter 2 in this volume. l t*au,,tu, ,.,,,a,',,;r:r:t ,',ii(ttriiitlt.;.:il.'rl.rl,,;9i1l+1,irl5igl :r, 360 rjstar)j ;i ii irj![ t"i,r ;:orr 360 MAURIcE ADAMs AND GERHARD VAN DER scHYFF contribute to constitutionallszrr, it must be implemented and be effective in the institutions and practices of the political order. That implies that the constitutional culture must be conducive to constitutionalism. The phrase 'constitutional culture'here refers to the agglomeration of beliefs and attitudes that the people, judges, lawyers and the state hold towards the Constitution and constitutional law in general.e Some Institutional Facts The Netherlands is a small, unitary country with some l7 million inha- bitants. It is highly aflluent and densely populated, and also a (mainly) ceremonial monarchy.tu The Netherlands has traditionally, and for a long time already, been a country of minorities, especially in religious and political terms (albeit with hardly any linguistic minorities). This also shows in electoral results, as no political party has ever been able to succeed in winning a parliamentary majority since the introduction of universal suffrage in 1917.rr Parliament, which consists of two Chambers, is situated in The Hague. The so-called Second Chamber or lower house consists of t50 members, who are elected once every four years - if there are no new elections as a result of government collapse - through a system of proportional representation. The First Chamber or upper house, also informally called the Senate, consists of 75 members who are elected every 4 years by the members of the provincial councils (i.e. 12 councils with 564 members in total, accounting for 72 provinces). Its election, however, does not coincide with elections for the lower house. The position of Senator is a part-time one of - formally at least - one day a week, with no parliamentary assistance. Its members come from all sectors of society. e See K^ Y. L. Tan, The Constitutiort of Singapore. A Contextual Analysis (Oxford: Hart Publishing, 2015), p. 58. A more general definition refers to the network ofunderstand- ings and practices that structure a specific constitutional culture. See R. Siegel, 'Text in Context: Gender and Constitution from a Social Movement Perspective', University o.f Pennsylvania Law Review, 150 (2001), 303. Cf. Nelken, who understands the term legal culture, in its most general sense) as one way of describing relatively stable patterns of legally oriented social behaviour and attitudes. D, Nelken, 'Defining and Using the Concept of Legal Culture' in E. Oriicti and D. Nelken (eds.), Comparatiye Law, A Handbooft (Oxford: Hart Publishing,2007),p.113. t0., A useful and detailed overview about Dutch political history and its institutional shape can be found in R. Andeweg and G. A. Irvin, Governance snd Politics of the Netherlands (Basingstoke: Palgrave Macmillan, 2014). " Ibid.,pp.zz-3. jii: -161 i3::i r1, ;1:14 coNSTITUTIONAL CULTURB IN THE NETHERLANDS 361 Although having more or less the same powers of governmental over- sight as the lower house, the upper house has no right of legislative initiative or even amendment, but it nevertheless has to approve legisla- tion accepted by the lower house.