Comerford 1

Taylor Comerford
LSJ 367
Stephen Winkler
November 4, 2016
The Hoge Raad der Nederlanden: A Stealthy Legislator

Part I: History and Structure of the Dutch Supreme Court

The Netherlands is a society consistently at the center of international attention. Its

unique stances and engagement within highly contentious megapolitics, such as the regulation of

drugs and prostitution, have made the Hoge Raad der Nederlanden, or Dutch Supreme Court, a

topic of interest worldwide. However, the high court of the Netherlands has not always had such

power and has grown from an inconsequential and restricted founding in 1838. This growth in

strength stems from a distinct shift, marked by the groundbreaking 1919 case ruling in

Lindenbaum v. Cohen, in which the previous tactic of neutral application of civil code shifted to

more political style of interpretation (van Koppen 1990: 746). I intend to argue that despite the

constitutional restrictions on the Supreme Court’s political actions , the Netherlands’ leftist

policies have been decidedly aided by the expanded ability of justices to interpret and influence

law.

In this paper, I will introduce the Dutch Supreme Court in terms of its contextual history

and operations, focusing on its constitutionally defined structure, relationships with other bodies

of government, and historically established power balance. Furthermore I will argue the extent

of the Hoge Raad’s political prowess, focusing on Lindenbaum v. Cohen, which elucidates upon

its evolving role in Dutch politics, and the specific impact it has had on the progressive policy of

legal euthanasia (represented in the Schoonheim case and The Office of Public Prosecutions v.

Chabot). The Netherlands has a liberal history in terms of moral and political processes, and it is

easy to relate this trend to a highly powerful and politicized supreme court. Such a logic is
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indicative of societies, like the United States, in which rulings made by the highest court have

forced legislation towards a liberal slant (Shapiro 1994: 156). Much as Marbury v. Madison

played a revolutionary role in the assertion of political power in the United States, Lindenbaum

also expanded the power of the Dutch Supreme Court. While the role of Dutch Supreme Court is

limited in comparison to its Western counterparts, the Netherlands has unparalleled and

progressive legislative stances due to the political power of its judicial branch.

History:

To better understand the nature of the Dutch judicial system, it is imperative to

understand history which contributed to its constitutional foundation. The Netherlands has had a

tumultuous past of foreign involvement and governmental change, including foreign rule under

France and Spain (Ginsburg & Melton 2015: 4). It was originally established as a republic in

1581, then became a kingdom under the rule of the French in 1806 (Ginsburg & Melton 2015:

4). Its constitution was written in 1815, directly following French occupation and under a newly

established, Dutch constitutional monarchy. The original constitution reflected the governmental

structure and diplomatic position of the Kingdom of the Netherlands at the time. The influence

of recent French rule was reflected in the civil law tradition established in the Netherlands.

Furthermore, a temporary, but strong union with the state of Belgium resulted in a bicameral

parliament to keep consistency between the two governments (Ginsburg & Melton 2015: 4).

In the ten years following its birth, the constitution was a source of contention

throughout the country, especially in specific religious groups, liberals, and the lower class,

culminating in significant reform in 1848. This caused a significant changes in the role and

structure of governmental branches in reflection of the new democratic structure (Ginsburg &

Melton 2015: 5). With the end of a monarchy came a shift in political power, in which the
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lawmaking ability once held by the executive branch was awarded to elected parliamentary

members (Ginsburg & Melton 2015: 4). In addition, this series of significant revisions resulted

in the final form of the Dutch judicial branch. This finalized the constitutional provisions

pertaining to the judicial system, specifically the role of the Supreme Court, which included the

fusing of judicial and legislative branches (indicative of lingering French influence) and the

reinforcement of judicial inferiority (Ginsburg & Melton 2015: 4). With exception to the addition

of the Ombudsman in 1999, no additional revision has been made constitutionally to the judicial

system in the Netherlands1 (Ginsburg & Melton 2015: 6).

Supreme Court Justices:

Chapter 6 of the Dutch Constitution present out the number of structural provisions of the

judicial branch. Articles 117 and 118 specifically describe the specificities of judicial

composition in the Dutch bench . In accordance with Article 118, justices are appointed by

Parliament “from a list of three persons drawn up by the Lower House of the States General”.

Parliament is also given the power to decide the term length of justices in Article 117, which has

been limited to a mandatory retirement at 70 years of age. The Supreme Court in total has 41

judges, which can be divided into 1 president, 6 vice presidents, 31 justices, and 3 justices in

exceptional service (CIA World Factbook). Finally Article 117 also decrees that the Supreme

Court is responsible for the removal of justices in circumstances in which they fail to fulfill the

commitment required of their office, either in the context of corruption or negligence (Dutch

Constitution, art 117).

Separation of Powers:

1
Other additions and revisions to the Constitution of the Kingdom of the Netherlands have not affected
the judicial branch nor the Dutch Supreme Court
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The Dutch High Court is separated into 3 chambers which include the civil, criminal, and

the fiscal or tax courts, and an alternative reconciliation path through ombudsman (CIA World

Factbook). Furthermore the Supreme Court also has authority over ordinary courts. This system

of lower courts is made up of 11 courts of appeal and 4 district courts, each of later having 5

subdistrict courts (CIA World Factbook). The Supreme Court does not provide rulings based

upon the appeal of administrative cases in all but the most “specific and limited grounds” (Hoge

Raad der Nederlanden). The main role of the Supreme Court is cassation, or the review of

contested judgement in the Court of appeal with “the aim of … [preserving] legal uniformity”

(Hoge Raad der Nederlanden). Furthermore its relation to other government branches is marked

by judicial inferiority in comparison to both executive leader and the legislative branch to which

it is fused.

Judicial Review Power:

The power of this court is characterized most aptly by the constitutional restrictions

placed upon its ability to preform specific types of judicial review. Due to the early foundation

of the Court, at which time the appointed justices represented the upper class, there are severe

limitations on constitutional review. The collective majority did not want these special interests

of the elite playing a large role in the review of civil code and other acts of the legislature

(Ginsburg & Melton 2015: 4). Due to this history, the Supreme Court is prohibited any form of

judicial review on acts of legislature or international treaties, removing the ability of the supreme

court to preform any pure style of abstract constitutional review (Dutch Constitution, Art. 120).

This is a rare legal configuration specific to the Netherlands and the United Kingdom (Comella

2004: 462). Despite this prohibition, both forms of concrete review are practiced by the

Supreme Court. As previously mentioned, the Dutch Supreme Court is one of cassation,
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meaning that the majority of cases it hears are brought by individuals who have exhausted the

appellate processes of lower courts (Hoge Raad der Nederlanden). Furthermore as a civil law

system, the judicial branch was intended to only objectively apply civil code. However with the

advent of the aforementioned Lindenbaum v. Cohen, whose ruling implicitly used political legal

interpretation, Dutch courts implement their respectively limited review power to greatly

influence public policy.

Access to the Supreme Court:

Finally, access to the Dutch Supreme Court is conjoined with its power and ability to

preform specific styles of judicial review. Because abstract review cannot be preformed by the

Court, the legislative and executive branches do not have the ability to present treaties or

legislature to the Court for constitutional review (Dutch Constitution, Art 120). However

lawyers, judges, and other court officials, as well as any Dutch citizen2 who has exhausted lower

levels of adjudication, are all able to bring cases to the Supreme Court (Hoge Raad der

Nederlanden).

Part II: The Political Impact of the Dutch Supreme Court

In discussion of these features of the Dutch Supreme Court, the complex nature of its

structure leads to a multiplicity of arguments surrounding its political role. The Dutch

Constitution technically prevents the Supreme Court from reviewing legislation and international

treaties, it can be argued that the Supreme Court has little political power (Dutch Constitution,

Art 120). This argument falls flat in consideration of how the Court’s role has transitioned

throughout its history. In studying this change, legal scholars cite the results of Lindenbaum v.

Cohen as the catalyst for political power in the Dutch Courts (van Koppen 1990: 746). The

2
The Dutch Supreme Court also serves as the high court of Caribbean countries once under the rule of
the Kingdom of the Netherlands, and therefore hears cases from their citizens as well
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conflict of the case arose between two business owners, Lindenbaum, a printer in Amsterdam,

and a competitor, Cohen, in 1919 (van Koppen 1990: 745). Cohen bribed an employee of

Lindenbaum for information contained in their offices, including customer contracts, resulting in

a tort claim brought against Cohen’s company (van Koppen 1990: 745). While it is logical that

Lindenbaum won the suit, the way in which the Court ruled was imperative. The legal

precedence at the time dictated that “one is liable in tort only if a statutory provision had been

violated”, meaning Cohen was technically innocent (van Koppen 1990: 745).

However Article 1401 states one is in violation of Dutch Civil Code when “an act or

omission which infringes another’s right, or conflicts with the defendants statutory duty, or is

contrary either to good morals or to the carefulness which is due in society with regard to another

person or property” (van Koppen 1990: 746). The Court re-interpreted this statute in favor of

Lindenbaum, stating Cohen as a violation of “good morals or the carefulness which is due in

society” (van Koppen 1990: 745). Peter van Koppen, a dutch legal scholar, argues that the

application of this statute in favor of Lindenbaum was the first instance in which the Supreme

Court used a “expansive view of the law” (van Koppen 1990: 745). This extension of

jurisprudence is a critical shift in the role of the Courts which previously “[strictly adhered] to

the literal interruptions of statutes” (van Koppen 1990: 745).

This case is imperative in contradicting the concept of a restricted Dutch Supreme Court.

The review powers of the Hoge Raad Der Nederlanden, as discussed in Part I, do not extend to

abstract review of legislation or treaties passed by Parliament. With that being said, the ability of

the high court to interpret civil and criminal code in implementation, among other bodies of law,

allows the judicial branch to shape the implementation of law based upon their own political
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beliefs. This is exactly parallels the argument made by American legal scholar Shapiro about the

United States Supreme Court, who claims that while judicial paradigm imparts the responsibility

of judges to impartially apply law, the reality is that judges can and do interpret legislation,

giving way to an extensive politicalization of courts (Shapiro 1994: 156). The Dutch Supreme

Court was and is able to play a highly political role due to their ability to rule based upon

interpretations of law that reflect their own beliefs, rather than that of legislators.

While Lindenbaum is a tort case that focuses on business law, it has created a legal

legacy that can be seen throughout a multiplicity current rulings. The nature of Dutch culture

and legislature has involved courts in conflicts that are indicative of the megapolitics at play in

the Netherlands. An incredibly controversial example of this is euthanasia, or the assisted

suicide of elderly and/or extremely debilitated medical patients. What is interesting about this

specific contentious right is the way in which the Dutch Supreme Court both influenced the

creation and interpretation of criminal code. A controversial example of such is the gradual

legalization of euthanasia.

The medical practice of assisted suicide was not written into legislature till 2002, when it

was added to criminal code under articles 293 and 294 (Dutch Criminal Code, Part XIX,

Sections 293 & 294). However this law was predeceased by a controversial 1984 ruling of the

Hoge Raad, in the internationally recognized Schoonheim case (de Haan 2002: 59). The Dutch

Supreme Court was faced with the trial of a doctor who had administered euthanasia to an

elderly woman (de Haan 2002: 59). Crucial to the ruling of the case was her excruciating,

terminal medical condition and explicit will to medically end her life (de Haan 2002: 59). At this

point in time there was no criminal code that authorized the practice of physician assisted

suicide, and in the ruling of ordinary appellate courts Dr. Schoonheim was found guilty of
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murder (de Haan 2002: 59). The groundbreaking and contentious nature of the rulings lead it to

the Supreme Court. Here justices acted with a high level of power and autonomy, ruling in favor

of Schoonheim on the basis of necessity- his role as a doctor presented him with the duty to aid

his patient in a way that conflicted with, and eventually superseded the law (de Haan 2002: 59).

The Dutch Supreme Court was able to use the Schoonheim case to not only create a legal

precedence that acted unofficially as legislature, but did so outside of any current legal code.

Despite the judicial inferiority intended by the constitution, this case exemplifies the ability of

the Supreme Court to supplant not only law, but the entire legislative branch. In this way the

judiciary exhibited a high level of politicalization.

Nearly a decade later, the case The Office of Public Prosecutions v. Chabot indicated

further political power in the judicial branch. In the 1994 Supreme Court Case, the judiciary was

able to expand jurisprudence on euthanasia in way that functioned like an amendment to a law.

Unlike previous cases, such as Schoonheim, in which “suffering was of somatic origin”, the

psychiatric patient who underwent assisted suicide, “Mrs. B”, was clinically depressed following

family tragedies (Griffiths 1995: 232). The psychiatrist on trial had given lethal medication to

“Mrs. B” in fulfillment of her own desire, which was followed by her death in 30 minutes

(Griffiths 1995: 234). The Supreme Court found its decision to be further nuanced by the

autonomous decision of the patient to engage in assisted suicide and that her mental suffering

was assumed to be long-lasting (Griffiths 1995: 236). Although the High Court found Chabot

guilty of murder, based upon the condition of Mrs. B and Chabot’s medical license, they did not

“impose any punishment or other measure”. The ruling was based upon Article 9a of the Dutch

Criminal Code, which allows judges to refrain from punishing an offense “where he deems this

advisable, by reason of the lack of gravity of the offense, the character of the offender, or the
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circumstances attendant upon the commission of the offense or thereafter” (Griffiths 1995: 239).

This judgement created a legal precedence for future euthanasia cases, awarding patients

suffering mental illness the right to engage in the medical process, and further expanding the

legal parameters already created by the Supreme Court (Griffiths 1995: 237).

Euthanasia is a process that is highly contentious in character due to its foundation in

moral justification. This is a clear example of legislation that falls directly into the realm of

megapolitics, which engages the judiciary in more than simple application of code, and forces

justices to interpret law through highly moral and political methods. Through the establishment

of precedence in both cases, the Dutch Supreme Court was able to create pseudo-law on

euthanasia, functioning completely independently from Dutch Parliament. A court that was

politically weak would not be able to influence policy through its rulings. Dutch Supreme Court

justices were able to engage politically in determining not only the legality of euthanasia, but

also whom, when, and in what circumstances the medical practice was to be legal. By ruling

firstly to allow physician assisted suicide, and then to allow the innumerable suffering of mental

diseases to fall under the category of legal euthanasia, the Court was able to fundamentally create

law, functioning completely independently of the parliament members who were elected to do

so.

Furthermore this style of judicial ruling would not have been possible if the Court was

constrained in the manner originally intended by the Dutch constitution. The aftermath of

Lindenbaum v. Cohen is felt in the rulings of both the Schoonheim case and The Office of Public

Prosecutions v. Chabot. Without the expansion of judicial power in terms of review, the

Supreme Court would not have had the jurisdiction to interpret criminal code in such a manner,
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nor would it have been able to influence the scope of legislation in such a highly political

manner.

The great influence of the Dutch Supreme Court can be felt further in the creation of

Articles 293 and 294 of criminal code in 2002, which officially ratified the already established

legality of euthanasia. This only reaffirms the political power of the Court, indicating that not

only can it establish core legal tradition outside of the legislature, but also force the hand of

elected law-writers. By establishing a wide base of jurisprudence close to two decades before

legislature was passed, the Supreme Court exhibits a power that not only exceeds constitutional

intentions, but that of other government branches.

The Hoge Raad Der Nederlanden is court with a complex foundation and an even more

nuanced history. Echoing the roots of its French occupation, it is modeled in the civil style.

From its conjoined nature with parliament, to the inability to review acts of legislature or

international treaties, the constitutional structure of the Netherland’s highest court is intended to

be inferior. However it is clear that the role of the judicial branch extends far past the objective

application of civil and criminal code. With the groundbreaking ruling of Lindenbaum v. Cohen,

the Dutch Supreme Court was able to expand its power through interpretation of law, rather than

simple implementation. Decades later, the Courts have expanded this power further, using their

expanded role to involve themselves politically in areas of contention. For the issue of

euthanasia, the Schoonheim case was crucial in the creation of legal precedence; The Office of

Public Prosecutions v. Chabot expanded this jurisprudence. In these cases the Supreme Court

was able to legalize and limit euthanasia through their rulings, all of which occurred well before

any law was enacted by parliament. What is clear through these findings is that the

constitutional or governmental limitations do not always prevent a High Court from having
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enormous impacts on the political landscape of its state. The Dutch Supreme Court, while being

constitutionally restricted, plays a large role in the creation and implementation of Dutch law,

and is an immense source of political power.

References

Central Intelligence Agency “The World Factbook: The Netherlands”, https://www.cia.gov/

library/publications/the-world-factbook/geos/nl.html (accessed 14 Oct 2016).

Comella, Victor Ferreres (2004) “The European model of constitutional review of legislation:

Toward decentralization?” 2 New York University Law Review. 461-491.

de Haan, Jurriaan (2002) “The New Dutch Law on Euthanasia," 10 Medical Law Review. 57-75.
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Ginsburg, Tom and James Melton (2015) “The Netherlands Constitution: Implications for

Countries in Transition,” IDEA’s Constitutional Building Processes Programme, http://

comparativeconstitutionsproject.org/files/Netherlands_Implications_Report.pdf?6c8912,

(accessed 14 Oct. 2016).

Griffiths, John (1995) “Assisted Suicide in the Netherlands: The Chabot Case,” 58 The Modern

Law Review, 232-248.

Shapiro, Martin (1994) “Judges as Liars,” 17 Harvard Journal of Law and Public Policy,

155-156.

The Hoge Raad der Nederlanden “Cassation: the main task of the Supreme Court”, https://

www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/

Supreme-court-of-the-Netherlands/Paginas/Cassation-the-main-task-of-the-Supreme-

Court.aspx (accessed 10 Oct. 2016)

van Koppen, Peter J. (1990) “The Dutch Supreme Court and Parliament: Political

Descisonmaking versus Nonpolitical Appointments,” 24 Law and Society Review,

745-780.

Constitutions Cited

“The Constitution of the Kingdom of the Netherlands” Chapter 6, Articles 116,117, & 120.

https://www.constituteproject.org/constitution/Netherlands_2008?lang=en
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Statutes Cited

Part II, Dutch Criminal Code 9a (2012)