As we have observed, fundamental rights review of parliamentary legislation in the Netherlands is highly dispersed in the sense that it is carried out largely by ordinary courts on the basis of international human rights law. This means that the constitutional position of courts engaging in fundamental rights review is essentially not different from that of the courts in general. Having a separate constitutional court to decide upon the constitutionality of statutes and their consequences might produce a separate set of rules regarding the proper boundaries for such a court. This is because it is not hierarchically subordinate to other courts nor can it, strictly speaking, subject other courts to its general jurisdiction. That is definitely not the case in the Netherlands, where constitutional review in the sense of rights review only takes place within the general judicial framework. The rules that govern the boundaries of ordinary statutory interpretation therefore apply equally to fundamental rights adjudication.
A general characteristic of a civil law system is the lack of a doctrine of judicial precedent. The Dutch are no exception in this regard. Here, the concept of res judicata traditionally has a rather narrow meaning: it prevents the same parties from litigating the same case over again. Moreover, what the Court has dictated in its judgment, either on points of law or on points of fact, is lawfully binding, but theoretically only on the parties before it.50 The Dutch legal system officially does not recognise a doctrine of stare decisis, where courts are bound by their own precedents or the precedents of higher courts.51 In practice, however, the reasoning of the Supreme Court is generally followed by lower courts and sometimes – on a voluntary basis – even by the highest administrative courts.52 As the Supreme Court has the power to reverse decisions of the ordinary courts, there seems little point for the latter to do otherwise. Following the case law of the Supreme Court is thus largely a matter of pragmatism besides the more fundamental reason of equality.53 The Supreme Court also considers itself to some extent bound by its own case law and frequently refers to it. In practice, therefore, the Court’s case law may be regarded as a source of law.54 However, that does not alter the fact that the Court operates in a civil law system, where the separation of powers traditionally places some weight on the fact that it is the duty of the legislature to make the law and that of the courts to apply it.55 And although this principle has, on the whole, never been applied very strictly in the Netherlands, it is certainly not an open-and-shut case that the courts have a lawmaking role to play. There is then a slight tension between Dutch constitutional theory on the one hand – more or less repudiating a lawmaking role for the courts – and current legal practice.
In this section we will first describe the case law of the Supreme Court on its supposed lawmaking function. We will then turn to the justifications and the critique legal scholarship has offered in reaction to this case law. And finally, we will discuss some of the proposals that have recently been put forward to facilitate the Court’s lawmaking function.
.4.2.Defining the Process of Lawmaking
It has often been said that the courts have always assumed a lawmaking role, even from the outset.56 The legal process simply is inconceivable without some judicial lawmaking. Until the 1980s, the Dutch Supreme Court never actually said that it had a duty to do so, but clearly it had always been forced to interpret the law. However, according to one prominent author, the Court was not likely to engage in lawmaking before 1960.57 That raises the question what the term ‘lawmaking’ actually stands for. When former president Martens of the Supreme Court spoke of lawmaking as intrinsic to judging a case in his remarkable farewell speech for the Court, he evidently used it in a different way than the prominent author we mentioned just now. Martens evidently used a broader notion of what constituted judicial lawmaking than the other author, whose use of the term came closer to what one might call ‘judicial activism’.
Lawmaking in the spirit of Hans Kelsen is indeed intrinsic to the judicial process. The courts ‘create’ law just by interpreting a statute and applying it to an individual case.58 In that view any interpretation means creating law, no matter how close the court sticks to the literal wording of the provision in question. However, such lawmaking is hardly something to get excited about. True as the description in legal-theoretical terms may be, such a definition is far too broad to distinguish between legitimate and illegitimate lawmaking. One may, however, also speak of lawmaking when the court deviates from the literal wording of a legislative text in order to fill a legal gap. In this sense, it is perfectly possible for the court to remain firmly within the boundaries of the system and the objectives (teleology) of the statute, but then again, it might not.59 Where that is the case, the court would have to assume a clearly political role. In such cases, the Court, rather than the legislature, gives direction to society.60
.4.3.The Case Law of the Supreme Court concerning its Lawmaking Role
Since the beginning of the twentieth century, the Dutch Supreme Court has increasingly assumed that it may not only apply the law but develop it as well.61 In 1959, in Quint v. Te Poel, it explicitly ruled that where an Act of Parliament leaves a legal vacuum, the answer must lie within the existing statutory system.62 The Court thus firmly implied that it was obviously empowered to fill the gap. Moreover, it marked a clear boundary between what the court understood to be legitimate lawmaking in the sense of developing the law on the basis of existing law, and illegitimate lawmaking. That boundary was to be comprised by the existing statutory system.
As we have already implied, the Court has explicitly recognised its lawmaking role in the 1980 s. In the Citizenship case of 1984 it mentioned a ‘lawmaking duty’ for the courts but quickly added that making policy decisions clearly exceeded this duty.63 Several authors have since noted that when the Court speaks of lawmaking, it nearly always does so in a negative way – refusing to accept a specific interpretation or remedy because that would outstretch its judicial role.64 When it does feel that it may fill a gap, it hardly ever argues why lawmaking in this particular case is justified. This is very clearly illustrated by two cases we have already mentioned. In the citizenship case of 1984 it ruled that the limitations of its lawmaking duty would not allow it to remedy a violation of Article 26 of the International Covenant, whereas in the Spring decisions of 1986, it made no reference whatsoever to its lawmaking duty in order to justify its rather consequential judgment.65
After the Supreme Court openly coined its own ‘lawmaking duty’ in 1984, the legislature quickly followed suit. In 1988 it adopted the proposed Bill for a revised Judicial Organisation Act, in which a new Article 101a (currently Article 81) included specifically as the duties of the Supreme Court, to ‘secure the uniformity of the law and advance the development of the law’.66 With the ‘development of the law’ Parliament clearly recognised a lawmaking duty for the courts.67 However, the question remains what constitutes ‘development of the law’ and what exceeds mere development and turns into (illegitimate) lawmaking.
.4.3.1.The Dual Custody Case: Distinguishing Positive from Negative Lawmaking
In its 1984 judgment on dual custody, the Supreme Court followed the line of reasoning it had already set out in the 1959 Quint v. Te Poel case and applied it for the first time to fundamental rights review. As we have seen before, this case concerned the applicability of Section 1:161 (1) of the Civil Code, which required the courts to appoint one guardian when granting a divorce.68 In a case before the District Court of Amsterdam, the parents of six-year-old Ingolf requested joint custody after the divorce. The District Court refused the request, arguing that its duty pursuant to Section 1:161 (1) to appoint one guardian clearly ruled out the possibility of appointing two. Appealing the decision, the parents invoked Article 8 of the ECHR. However the Supreme Court agreed with the District Court. It argued that the legal system did not allow joint guardianship, not even on the basis of Article 8 of the Convention. This interpretation of Article 1:161 (1) of the Civil Code would outstretch the judicial function as it would engage the Court in positive legislating. It considered that introducing dual custody would not easily fit into the existing statutory system. It did not explain why that was the case, nor had the Advocate General done so (he had actually argued the opposite), but there it was. Yet, the Court managed to find a solution. The justices pointed out that Article 94 may not have allowed them to positively engage in judicial rulemaking but it did give them the power to set aside certain provisions of the Civil Code on the ground that their application would violate the Convention. Considering that ignoring Section 1:161 (1) would leave parental authority – on the basis of Article 1:161 (4) of the Civil Code – intact, it subsequently ordered the District Court to enquire whether joint responsibility for both parents would serve the child’s best interest.69
What the dual custody case shows remarkably well is that the Court made a crucial distinction between its power (based on Article 94) to set aside the Civil Code on the one hand and on the other, its lack of power to settle the issue by promulgating its own, more convenient, rules if those rules were incompatible with the existing statutory scheme. Ignoring one statutory provision in order to apply another hardly qualifies as doing justice to this statutory scheme but evidently the Court took Article 94 of the Constitution for a clear mandate to deviate from that scheme so long as it stayed on the negative side by ‘just’ ignoring a provision.
.4.3.2.The Dutch Citizenship Case: Avoiding Policy Decisions
The 1984 citizenship judgment, in which the Court explicitly recognized its lawmaking duty, added a new dimension to this. In this case the Court was confronted with a claim of an illegal immigrant who, during his stay in the Netherlands, had married a Dutch woman. Because his stay in the Netherlands was illegal and because he had built up quite a remarkable criminal record, he was asked to leave. The applicant then informed the authorities of his wish to acquire Dutch nationality. He relied upon Article 8 of the Nationality Act, granting the foreign wife of a Dutch husband the right to acquire Dutch nationality by informing the authorities of her wish. However, the provision obviously applied only to women, not men. The applicant argued that Article 8 violated paragraph 26 of the International Covenant and had therefore to be interpreted in such a way that men too had the right to acquire Dutch nationality. The Court did not accept the argument. It even refused to review whether the Act violated the Covenant because had it found a violation, it would not have been able to remedy the situation. Unlike in the dual custody case, setting aside the statute would clearly not benefit the claimant because the provision was positively phrased. It did not deny the applicant a right, just awarded it under-inclusively to women. Setting aside the statute would only deprive women of their privileged position, however women in general were not party to the case.
The question thus became whether the Court was allowed to read in the words ‘and men’ in the provision, thereby widening its scope. Under the Quint v. Te Poel reasoning, the issue would have been whether such ‘reading in’ would contradict the statutory scheme. It might have done, but the Court did not go into that. Instead, it argued that widening the scope to include men would not be the only lawful solution. Article 26 of the ICCPR merely prohibited unequal treatment and to abrogate the right for women was just as lawful as extending the right to men. This was a matter of policy and to choose between the two would be to encroach upon the political prerogative of Parliament. And so the Court left open the question whether the statutory provision violated Article 26 of the Covenant and turned down the applicant’s claim. It thereby added to its discourse a new ground to abstain from issuing a remedy: it was not prepared to choose between different policy outcomes. What might also have played a role though is the fact that at the time of the judgment a new statutory scheme had already been introduced in Parliament.
The citizenship judgment has received some criticism for its perceived overspill of judicial restraint.70 It is striking therefore that the Court delivered two judgments that are widely considered to be among its most activist only a year later.71
.4.3.3.The Spring Decisions: Judicial Activism or Prudent Lawmaking?
September 21, 1984: a child was born from two parents. That was not unusual. Indeed, most people are born from two parents. Nature will not have it any other way, at least not for the time being. What was so special about this case was that the parents were not married at the time of birth nor had they ever been married or had they any intention of doing so in the near future. They were happily living together and saw no need for marriage. That had been quite unusual for decades, but in the 1970s and 1980s more and more people in the Netherlands decided not to marry. Under Dutch law, such parents could exercise no parental authority at all. They could only obtain shared guardianship. The Court held that this distinction violated Articles 8 and 14 of the European Convention. What followed was an obscure mixture of setting aside certain provisions of the Civil Code while extensively interpreting others so that they might be read consistently with the Convention. The Court thus elaborately tried to regulate the conditions under which a request for joint parental authority was to be granted by the courts. The Court devoted an entire page in the case reports to describe these conditions. It did not elaborate on the question as to what authorised the Court to issue such regulations. They were not formally proclaimed or anything, but were mentioned as part of the interpretation of the Civil Code. What the Court effectively did was providing lower courts with a manual how to work through these difficult cases by using their combined powers to set aside and reinterpret national law in a uniform and Convention-proof manner. It probably considered it necessary to do so in the interest of legal certainty. However, as one author wrote: ‘This is legislation rather than judgment’.72 The question may well be asked whether such an extensive interpretation suited the contemporary statutory scheme. It probably did not. To that extent, the judgment did not seem to meet the criterion of the 1959 Quint v. Te Poel judgment. Moreover, many political policy issues were involved here. The question might equally be asked why the Court did not make reference to the criterion it had set out in its citizenship judgment just one year earlier.
.4.3.4.After the High Watermark: a Slow Retreat to Judicial Restraint
After the 1980s, the Supreme Court began its slow retreat to an attitude of greater judicial restraint. It increasingly refused to review Acts of Parliament based on the argument that it was not in a position to offer a remedy. In a vast number of cases it followed the reasoning it had already followed in the citizenship judgment.73 The Spring decisions had fundamentally changed Dutch family law, but they remained exceptions in the fundamental rights case law of the Court. What changed, though, was that the Court sometimes applied the citizenship reasoning even in cases where it might have had the opportunity to set aside a provision on the basis of Article 94 of the Constitution. The sharp contrast it had introduced in the dual custody case, when it said that it could not add something to the law but was able to set it aside (effectively reaching the same outcome) might not have really been abandoned but it was certainly blurred to some extent. The Court may have taken in some of the critique of Advocate General Moltmaker in the Spring cases. He argued that the difference between filling a gap and setting aside a provision is of a formal rather than of a substantive nature.74 For Moltmaker, there existed no clear distinction between negative and positive lawmaking.
Whenever setting aside a statute would have rather undesirable consequences, either because that would create a legal gap or otherwise, the Court would abstain from doing so. In the 1998 Car expenses deduction case for instance, the Court refrained from setting aside a provision of the Income Tax Act 1964, because even though it would have solved the relevant inequality, it would instantly have introduced another inequality.75 In another case concerning court levies, its motive not to set aside the statutory provision probably resulted from fear for the financial consequences for public expenditure.76 Incidentally, the Court even applied the citizenship reasoning to cases where setting aside the statute would have been an appropriate remedy. Thus in a 1997 case concerning the possibility for two women to adopt a child, it refused to review whether Article 1:227 of the Civil Code – which effectively excluded same-sex couples from adopting a child – violated Articles 8 and 14 of the European Convention.77 It followed the reasoning of the Advocate General, who had argued that there were several possible policy outcomes and as setting aside the statute would lead to one of them, by doing so the Court would make a political choice, which of course would not do.
.4.3.5.Towards a New Model: the 1999 Labour Expenses Deduction Judgment
In the 1990s, several scholars expressed their uneasiness with regard to the abstaining practice.78 Some of the questions that arose were whether Article 94 of the Constitution allowed such a move and how abstaining had to be considered from the perspective of effective legal protection of fundamental rights. The Court eventually responded with a landmark judgment in 1999, which addressed both questions by introducing a new model composed of elements of some of the cases we have just discussed.79
The case itself concerned a technicality regarding the tax deduction for those with relatively high labour costs as compared to those with standard labour costs. We will not discuss the facts of the case here. What matters is that the Court was confronted with a relatively clear inequality between the two groups in Article 37 of the Income Tax Act 1964. It explicitly considered this provision to be in violation of Articles 14 and 1 of the European Convention’s First Protocol. The Court then proceeded to the question whether it was in a position to remove the inequality. It eventually concluded that it was not. But in doing so, it merged some of different lines of reasoning of its previous case law, adding to that a few drops of the concern articulated by legal scholarship.
For the very first time the Court connected its supposed lawmaking duty to the principle of effective legal protection. It implied that it was obviously under a duty to provide adequate protection and started off by stressing that to set aside the impugned provision was not a sound option, as this would not benefit the claimant. As was the case in the citizenship judgment, Article 37 of the Income Tax Act was positively framed in the sense that it allowed a deduction for an under-inclusively phrased group. The Court thus considered that to set aside the provision would not, on its own accord, create a right to the deduction for the discriminated group. This is important because what the Court appears to have implied is that if setting aside the statute had been a suitable remedy for the applicant, it would have done so – even if that had ultimately led to only one of several possible outcomes. Like in the dual custody case, the Court would then take Article 94 of the Constitution for a clear mandate to act. The Court may therefore have dismissed its cautious attitude in the 1997 Same-sex Parents case, where it had refused to set aside the statutory provision on the basis that there were other legitimate policy outcomes as well.80
The Court then proceeded to examine in what way it could possibly provide a remedy, given the fact that setting aside the statute on the basis of Article 94 was of no use. It considered that there was a legal gap concerning the question whether or not the applicant had a right to the deduction. It could either fill this gap on its own initiative or leave the matter for the legislature. The answer to the question which course to take, according to the Court, depended on the outcome of a balancing test involving on the one hand the principle of effective legal protection and on the other some desirable judicial restraint ‘in the current constitutional structure’. The Court finally gave some clues as to how such balancing should take place, using its earlier case law as a catalogue of topoi. From its Quint v. Te Poel reasoning it derived that if the existing statutory scheme provided clues for deciding the case, it would fill the gap.81 If on the other hand there were different policy outcomes to choose from, choosing between them would – for the time being – be a matter best left for the political branches.82 This consideration led some authors to carefully try and compare it to the political question doctrine of the US Supreme Court.83
The Court did also, uncharacteristically, explain why it was not prepared to interfere in the legislative process when there were different policy outcomes to choose amongst. It stressed that the courts had to observe some ‘desirable judicial restraint’ and that it had only limited possibilities to engage in a quasi-legislative process.84 Its explanation was of course primarily intended for the ears of those who had been critical of the Court’s restrained attitude in years leading up to the judgment. To that end the Court added one other remark. As we have seen, the Court had taken the view that if such a situation arose where there were different policy outcomes to choose from, it would for the time being leave the matter for the legislature to decide. It then explicitly stressed that the outcome of its ´balancing test´ might be different if the legislature was familiar with the inconsistency and chose to ignore it. What the Court said in fact was that it assumed itself competent to engage in lawmaking even where that meant taking policy decisions, but it had to wait for the legislature to act first. Yet, if Parliament deliberately maintained the incompatible regulation, the Court would not hesitate to do whatever it thought Parliament evidently might or in any case should have done.
There is a remarkable paradox here with the approach taken by the Court in its case law concerning the ban on judicial review of the constitutionality of statutes as laid down in Article 120 of the Constitution. In its celebrated Harmonisation Act judgment of 1989, the Court had ruled that it may not declare statutory provisions void for their lack of consistency with either the Constitution or legal principles.85 But as we have seen, it made an exception for cases where Parliament could not have known about the inconsistency. It then implicitly assumed that Parliament would have wanted it not to apply the incompatible provision. This approach appears to deviate from the Labour expenses deduction approach, where the Court considered itself competent to legislate if Parliament had knowingly failed to do so.
The difference between the two approaches lies in the nature of the review undertaken by the Court. With respect to Article 120 of the Constitution, the Court has to observe the fact that the question whether a statute is in fact constitutional is ultimately for Parliament to decide upon. The Dutch version of parliamentary sovereignty (as far as it exists) therefore fundamentally differs from that of the United Kingdom where, as Dicey phrased it, ´Parliament has the right to make or unmake any law whatever´.86 The Dutch Parliament may certainly not make or unmake any law whatsoever. Its powers are limited by the Constitution. However, Article 120 reserves for Parliament the right to have the ultimate say on the question whether it has overstepped such limitations. So the Courts may not only safely assume that it is Parliament’s desire to legislate in conformity with the Constitution, they must respect the fiction even when it is very clear that Parliament has actually no such intention at all. The situation is different with regard to treaty law. Here the same assumption applies: the legislator aims to legislate in compliance with its international obligations but the question whether it has actually done so is ultimately a matter for the courts to decide upon. Article 94 of the Constitution makes that painfully clear. If Parliament therefore knowingly ignores its obligation to legislate consistently with, for instance, the European Convention, the courts must intervene and ultimately issue a remedy. The relationship between the Supreme Court and the legislature is then much more one between equals than the relationship with regard to constitutional review where Parliament has the authoritative say.
In the case at hand, the Labour expenses deduction case, the Court developed a line of reasoning it had already put in practice some years before. In another tax decision, this time concerning commercial registration number plates, the Court had been willing to grant the victims of an unequal treatment the benefit they had been denied by the legislature.87 Of course, there was no clear obligation for Parliament to grant these car owners the impugned benefit. It could equally have decided to abolish the entire scheme. There were then two choices. And yet, the Court felt that it was entitled to choose the first option without leaving the matter for Parliament. There were two reasons for this. First of all, the government had actually warned Parliament that its amendment would most probably violate the Convention. Parliament had not in any way contradicted this statement but had nevertheless passed the bill amended. It was therefore painfully clear that Parliament had knowingly legislated inconsistently with the Convention. Moreover, granting the aggrieved car owners the benefit was exactly what the government had proposed to do in the first place. It therefore fitted in neatly with the existing statutory scheme and thus met the important criterion of the 1959 Quint v. Te Poel case.
On the other hand, it has now become clear that the Court is not very likely to assume that the legislature has consciously left a violation intact. After the 1997 Number Plates judgment the Court has never actually considered filling a gap when there were policy choices to make. Quite the contrary, when confronted with the alleged sluggishness of the legislature in amending the law in a few cases where the Court had declared the Act incompatible with Convention rights, it explicitly accepted the argument of the government that it had tried to amend the law with all deliberate speed.88 In the same judgments it has also ruled that when remedying the inconsistency, Parliament may freely choose to change the law only for the future in the sense that it need not necessarily enact its amendments with retroactive effect.89
The 1999 Labour expenses deduction judgment basically sums up the Court’s attitude to positive and negative lawmaking in fundamental rights cases. It is now clear that the Court recognises its duty to provide effective redress to claimants who successfully invoke human rights treaties. Moreover, it has developed a kind of step-by-step plan in order to decide on the nature of the redress.
1. First of all, it will always try to interpret any indefinite provision consistently with the treaty provision in question;
2. Second, it will try to provide redress by means of negative lawmaking: it examines whether setting aside the impugned provision might settle the case.
Only if that is not the case does the question arise whether the Court may engage in positive lawmaking by using its interpretative mandate.
3. As a matter of principle, it considers itself empowered to do so when there is a clear alternative which agrees with the existing statutory scheme.
4. It should leave the matter for Parliament to resolve when there are policy decisions at stake. The Court will then not easily encroach upon the political prerogative of Parliament.
5. But it is – at least theoretically – prepared to do so when Parliament evidently has no intention of putting things right within a reasonable period of time.
The Court generally complies with its own framework and it may therefore be said that it usually exercises judicial constraint when it comes to positive lawmaking in the sense of issuing regulations on the basis of its duty to interpret the law. There is one notable exception, however, to this general rule. And we will turn our attention briefly to that exception.
.4.3.6.The Exception to the Rule: European Union Law
Where a statute violates European Union law rather than the European Convention on human rights or one of the other human rights treaties, the Supreme Court does not consider it possible to leave the matter for the legislature. The basic assumption for the Supreme Court is that Articles 93 and 94 of the Constitution – regulating the effects of international law in the domestic legal order – do not apply to European Union law. As early as 1963, the European Court of Justice (ECJ) ruled in its landmark cases Van Gend & Loos and Costa v. E.N.E.L. that the European legal order is fundamentally monistic, meaning that Community law is both of direct effect and superior to any kind of national law (including national constitutions) on its own accord.90 The Dutch Supreme Court has never challenged this claim and in 2004 it even accepted it explicitly.91 This effectively means that it is ultimately the law of the EU itself which, in the view of the Supreme Court, determines the extent to which Community law affects the Dutch legal order. To that end the European Court of Justice has derived some very stringent rules concerning the effective legal protection of Community law by the national courts from the EC Treaty. Although the ECJ has consistently ruled that the effects of an inconsistency between national and Community law are a matter for national courts to deal with, it has simultaneously laid down some minimum guidelines in order to secure the uniform and effective application of Community law throughout the Union.92 National courts are required to interpret national law as far as possible in conformity with Community law.93 Would such an interpretation, according to the national rules of adjudication, prove to be impossible, then the national court in question is obliged to set aside the national rule.94 The ECJ has moreover underlined that any national rule which handicaps the possibilities for courts to secure the uniform and effective execution of Community law must be put aside as well.95 Mitigating the undesired consequences of the application of Community law can be considered only by the ECJ itself.96 Last but not least, the ECJ takes a relatively straightforward approach to remedies in discrimination cases. In such cases the national courts will have to extend the more favourable rule to the aggrieved party as well.97 The ECJ does not consider such an extension to be any kind of policy decision, but a logical outcome of applying the principle of non-discrimination to a given case, thereby deviating considerably from the approach usually adopted by the Dutch Supreme Court.
The Supreme Court has faithfully carried out its duties under Community law in this respect. A recent example taken from the field of taxation might illustrate this. In the Ilhan case, the Court determined that Article 1 of the Car and Motorcycle Taxation Act constituted a violation of Articles 43 and 55 of the EC Treaty.98 It considered that modifying – and consequently interpreting the statutory provision consistently with Community law – would outstretch its lawmaking duties as the existing statutory scheme and its legislative history did not yield any particular way forward. However, it refused to consider leaving the matter for Parliament, as it surely would have done, had it concerned a case under a human rights treaty. In stead it decided to set aside the Act at large, thereby effectively annulling the entire tax measure.99 In order to provide the required redress, the Court thus fell back on to its classical role of a Kelsenian negative legislator.
.4.4.Reactions of ‘la doctrine’ after 1999
As we have seen, there has always been a considerable debate on the question whether the courts have a lawmaking role to play and if so, how far this role might be stretched. This has traditionally been a debate among civil lawyers interested in methods of interpretation. But as the role of the courts with respect to fundamental rights review changed and increased in the 1980 s, the lawmaking powers of the ordinary courts clearly became a matter of constitutional law. This presented constitutional scholars with the basic question whether the traditional doctrines on the role of the courts were adequate in the field of fundamental rights review.100 However, such was the general consensus among civil lawyers by now that the courts were under a clear duty to develop and shape the law that there was also from the very outset among constitutional scholars a tendency to agree on the basic fact that the courts had a considerable lawmaking role to play.101 Dutch constitutional doctrine has therefore never been very fundamentally critical of the courts acting as a positive legislator. What is more, the term ‘positive legislator’ would hardly be used at all.
Consensus somewhat eroded in 2005 as a Nijmegen law professor questioned the lawmaking duty of the courts.102 He argued that this ‘so-called lawmaking duty’ was an invention by the Supreme Court itself, the creation of which was to a large extent itself a piece of lawmaking without any basis in written law.103 However, he was not the only one critical of the Supreme Court’s attitude. At the other end of the spectre, there had already been scholars arguing that the Court’s attitude towards individual victims was possibly too restrained to provide effective legal redress.104 In short, the debate was renewed.
Today legal scholarship can roughly be divided into three categories. First, there are those who are of the opinion that there is no legal basis whatsoever for the courts to engage in lawmaking.105 Courts decide cases and in the process of doing that, they might ‘find’ and apply the law but they do certainly not go about creating it. Second, probably the vast majority of scholars argue that there is a role for the courts with respect to judicial lawmaking, but it is equally clear that it should primarily be Parliament that enacts the law.106 They generally assume that Article 81 of the Judicial Organisation Act provides a clear basis for the courts to develop – and thus shape – the law, even if that means engaging in an activity close to legislating. They expressly reject the argument that the Supreme Court may never engage in lawmaking because it lacks the appropriate democratic legitimacy. Most of them assume that the courts do not derive their legitimacy no from any democratic principle but from the rule of law.107 However, this group lacks coherence in the sense that although most scholars agree that the courts have a lawmaking role to play when reviewing legislation, they differ on the extent of the lawmaking duty. The basic question here is whether the courts may encroach upon the policy prerogative of the legislature. There are those who think the courts clearly incompetent to do so.108 They consequently disagree with the stance the Supreme Court has taken in its Labour expenses deduction judgment, when it abstained from lawmaking but warned that it might in the future decide otherwise if Parliament remained inactive.109 Others maintain that although it is usually improper for the courts to engage in politically sensitive issues, it may nonetheless be necessary for them to do so in order to provide effective redress.110
Apart from this difference in opinion, the common denominator of this second group is that it regards lawmaking by the courts as possible but clearly the exception. It is first of all a spin-off of deciding individual cases and, in the case of fundamental rights review, something necessary but abnormal. Setting aside statutory law and subsequently formulating guidelines for society are not the core business of the courts but of Parliament.111 They stress, in other words, the primacy of Parliament in policy-making and legislating.112 There is, however, a third group of authors that appears to argue for a more sweeping understanding of the lawmaking role of the courts. For such authors, the courts – especially the Supreme Court – and the legislature are ‘partners in the business of the law’.113 Building firmly on the civilian tradition, they argue that Parliament is just not able to anticipate every sudden change of direction society takes. Therefore, judge-made law is now ‘an absolute must’, its contribution to the development of the law indispensable and it should certainly not be regarded as the exception but rather as the rule.114 Looking after the parties of the case at hand is not the only primary duty of the courts: they have an equally important duty towards the development of the law in general as well. However, one may wonder whether such scholars are still addressing the same subject. As we have seen, there is some disagreement about the extent to which the term ‘lawmaking’ ought to be used. The civil law approach is very much directed towards the filling of legal gaps the legislature is simply unable to fill. That situation substantially differs from what concerns constitutional scholars most, that is when the courts must set aside a clear statutory provision which nevertheless fails to produce an appropriate remedy for the case at hand. Still, the Dutch debate on the lawmaking powers of the courts is very much fashioned by the existence of this group. As we will see in the next section, their efforts seem to have influenced the Supreme Court as well as the legislature and reforms are now under way to adapt the Court’s position in the legal system to its lawmaking role.