Prof. Lucas Bergkamp on the Condition of the Rule of Law in The Netherlands

February 26, 2022

After a long corona hiatus, on Saturday, February 26, we organized a Salon Meeting in Amsterdam again! Our guest was Prof. Lucas Bergkamp. After studying medicine and law he specialized in environmental and climate legislation, as well as in European law. Centered upon the CSS theme of liberty he spoke with us about the condition of the rule of law in The Netherlands. Does the rule of law still function as it should? The conversation was led by Dr. Bart-Jan Heine.

What did we discuss?

In recent decades major shifts have taken place that have had a profound effect on the functioning of the rule of law in The Netherlands. By transferring powers to the European Union and through international treaties, the position of the national legislature has been weakened. The Dutch parliament is increasingly sidelined, whilst technocracy and the civil service have gained influence. Moreover, amongst the latter ethics have deteriorated. In developing policy they no longer seem to be guided by what they are allowed to do, but by an estimation of how far they can go without being reprimanded.

The judiciary, too, has its share in the changing legal order. It is increasingly profiling itself as an actor in solving social problems, even though that is not its core task. It is no longer satisfied with ‘simply’ rendering justice. On the basis of so-called unwritten law and open norms, such as human rights, it is increasingly assuming more interpretative power than the legislator intended. In this way the Dutch courts arrive at judgments that are difficult to describe as other than political, such as in the Urgenda case.

Finally, the imbalance in the functioning of the rule of law is not corrected from within institutions that ideally would do so. Like the judiciary, science, education, and journalism have become increasingly activist. As a result, arbitrariness looms and the public interest is in danger.

What may we conclude?

The democratic rule of law in The Netherlands is under pressure. Increasing activism in the various institutions is causing a growing imbalance in the separation of powers. The judiciary, in particular, should return to its own domain (rendering justice), whilst the Dutch parliament should reclaim much more of its independence. Above all, this complex issue calls for critical and independent minds to jointly counterbalance the developments that are taking place.

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