ICSS
Seminar preparation articles summary
Taekema introducing
Dutch law
Comparative perspective - Legal systems are divisible into classes or legal families
- Biggest difference between western legal systems is
the division between common and civil law systems
- English and American law systems are characterized by
case-by-case reasoning and judge-made law
- Civil law systems are characterized by abstract
reasoning
- European law systems are pretty alike but still
subdivisible into Romanistic, Germanic and Nordic
systems
- The Dutch system is seen as Romanistic mostly bcs The
Netherlands were occupied by Romanistic France in the
Napoleonistic times
- Some aspects also have been influenced by the
Germanic systems
The Netherlands in - Dutch law is influenced by European law, but the
European context Netherlands also have a voice in the creation of
European law
- European law is supranational and thus has power over
national legal systems
- Because the influence of the Dutch on European Union
level business has diminished, Euro-skeptic attitudes
have increased
Sources of law Enacted law (aangenomen wet)
- Enacted law is law made by bodies that have the power of
law-making
- Can be divided into four categories: treaties(verdragen),
constitution(grondwet), statutes(statuten), governmental
regulations(overheidsvoorschriften)
1. Treaties
- International rules are more and more important
- If a treaty is approved, it can be published into law
- Monistic system in Netherlands: treaties become law
automatically
- Dualistic system(not Dutch): rules have to be transformed
into national law by legal acts
- Sometimes it is up to the European states themselves to
incorporate some rules into their legal systems the way they
like
2. Constitution
- Highest national law in the Netherlands
- Gives citizens basic rights
, - Basis to governmental organizations
- States process of elections
- States rulemaking bodies and powers
3. Statutes
- Enacted law made by parliament and government together
- Government may only limit citizens freedom on basis of
general laws
- All governmental action has a basis in statutory law
4. Governmental regulations/decrees
- Additional rulemaking delegated by statute to other
governmental bodies
- Statutes are mostly framework for more specific regulations
- In case of conflict between rules, the higher rule precedes
the lower(treaties over constitution, constitution over
statutes or acts of parliament)
Case law(jurisprudentie/gerechtelijke uitspraken)
- Law formed by judicial decisions
- Judges interpret the law in a certain way. Through
jurisprudence, they can compare verdicts and expand on
other cases
- Rules made in relation to a case
- General rule is not as specific as case rule
- Most important court is Dutch Supreme Court
- If a lower placed court makes a decision, it does not go
under decisions of supreme court, like in common law
countries.
- When court’s decision goes against supreme court decision,
they can appeal to higher court. In last instance, supreme
court will overrule its own previous decision
- Normally lower courts use supreme court’s decisions as
authoritative source
- In case of conflict between case law and enacted law,
usually the latest source is used.
Unwritten law
- Law which is not described in written documents
- Two kinds:
1. Customary law (gewoonterecht):
- If a rule is practiced and seen as law, this unwritten rule is
regarded as valid customary law
- The condition that a custom was only law if it was
recognized in a statute has been abolished
- Example: government must resign if it no longer has the
trust of the second chamber
2. General principles of law
- Abstract norms that refer to basic legal values and underlie
the whole of the legal system or large parts of it
- They are used to supplement legal rules and support
interpretations of rules
Interaction between legal sources
- Question in court: how does one source of law weigh in
relation to another
, - Problem in relations with international and European and
national law is the plurality of legal sources.
- Sometimes the court interprets international rules
differently from the government or legislature
Dutch law in context Religious and cultural diversity
- Netherlands have a reputation for tolerance
- Characteristic political system: pillarization (4 pillars in
society/4 groups)
- End of 1960’s guest workers came, lot of immigration still
Pragmatic attitude
- National government consists of coalition of 4 elected
parties
- Example: specific case law for euthanasia, which was later
laid down in statute bcs in favour of political majority
- Tolerance can mean that the governments follows a clear
policy to not prosecute certain offences
- This sometimes leads to criminal acts made legal
- Dutch legal system is pragmatic bcs is searches for good
solutions instead of blindly following rules
- It is possible bcs of many alternatives to formal court
procedures
Limits on tolerance: polarization in Dutch society
- On the other hand, more immigration led to more
restrictions and law enforcement on immigrants
- Where law may become stricter in the above described
case, acceptance and tolerance grows towards sexual
equality and drugs
The structure of Dutch law - Subdivide law into substantive and procedural law
and this book - Substantive: rules that establish rights and duties
- Procedural: rules regulating procedures by which rights and
duties can be enforced
- Most common way of dividing national Dutch law is into
public and private law
- Criterion for division is mainly involvement of government
- If it only involves citizens, it will be private
- If it also involves government it will be public
- If law enforcement maybe is the case, it will be public law,
but sometimes the government acts as a private party in a
case. In that case, private law applies
Division in public law:
1. Constitutional law: organizes state and bodies
2. Administrative law: governs the way governmental bodies
act toward citizens
3. Criminal law: law for government, mainly on how to enforce
the law
Private or civil law:
- Characterized by general assumption of equality and private
initiative
- The individual judges whether a legal problem is serious
enough to take to court
Seminar preparation articles summary
Taekema introducing
Dutch law
Comparative perspective - Legal systems are divisible into classes or legal families
- Biggest difference between western legal systems is
the division between common and civil law systems
- English and American law systems are characterized by
case-by-case reasoning and judge-made law
- Civil law systems are characterized by abstract
reasoning
- European law systems are pretty alike but still
subdivisible into Romanistic, Germanic and Nordic
systems
- The Dutch system is seen as Romanistic mostly bcs The
Netherlands were occupied by Romanistic France in the
Napoleonistic times
- Some aspects also have been influenced by the
Germanic systems
The Netherlands in - Dutch law is influenced by European law, but the
European context Netherlands also have a voice in the creation of
European law
- European law is supranational and thus has power over
national legal systems
- Because the influence of the Dutch on European Union
level business has diminished, Euro-skeptic attitudes
have increased
Sources of law Enacted law (aangenomen wet)
- Enacted law is law made by bodies that have the power of
law-making
- Can be divided into four categories: treaties(verdragen),
constitution(grondwet), statutes(statuten), governmental
regulations(overheidsvoorschriften)
1. Treaties
- International rules are more and more important
- If a treaty is approved, it can be published into law
- Monistic system in Netherlands: treaties become law
automatically
- Dualistic system(not Dutch): rules have to be transformed
into national law by legal acts
- Sometimes it is up to the European states themselves to
incorporate some rules into their legal systems the way they
like
2. Constitution
- Highest national law in the Netherlands
- Gives citizens basic rights
, - Basis to governmental organizations
- States process of elections
- States rulemaking bodies and powers
3. Statutes
- Enacted law made by parliament and government together
- Government may only limit citizens freedom on basis of
general laws
- All governmental action has a basis in statutory law
4. Governmental regulations/decrees
- Additional rulemaking delegated by statute to other
governmental bodies
- Statutes are mostly framework for more specific regulations
- In case of conflict between rules, the higher rule precedes
the lower(treaties over constitution, constitution over
statutes or acts of parliament)
Case law(jurisprudentie/gerechtelijke uitspraken)
- Law formed by judicial decisions
- Judges interpret the law in a certain way. Through
jurisprudence, they can compare verdicts and expand on
other cases
- Rules made in relation to a case
- General rule is not as specific as case rule
- Most important court is Dutch Supreme Court
- If a lower placed court makes a decision, it does not go
under decisions of supreme court, like in common law
countries.
- When court’s decision goes against supreme court decision,
they can appeal to higher court. In last instance, supreme
court will overrule its own previous decision
- Normally lower courts use supreme court’s decisions as
authoritative source
- In case of conflict between case law and enacted law,
usually the latest source is used.
Unwritten law
- Law which is not described in written documents
- Two kinds:
1. Customary law (gewoonterecht):
- If a rule is practiced and seen as law, this unwritten rule is
regarded as valid customary law
- The condition that a custom was only law if it was
recognized in a statute has been abolished
- Example: government must resign if it no longer has the
trust of the second chamber
2. General principles of law
- Abstract norms that refer to basic legal values and underlie
the whole of the legal system or large parts of it
- They are used to supplement legal rules and support
interpretations of rules
Interaction between legal sources
- Question in court: how does one source of law weigh in
relation to another
, - Problem in relations with international and European and
national law is the plurality of legal sources.
- Sometimes the court interprets international rules
differently from the government or legislature
Dutch law in context Religious and cultural diversity
- Netherlands have a reputation for tolerance
- Characteristic political system: pillarization (4 pillars in
society/4 groups)
- End of 1960’s guest workers came, lot of immigration still
Pragmatic attitude
- National government consists of coalition of 4 elected
parties
- Example: specific case law for euthanasia, which was later
laid down in statute bcs in favour of political majority
- Tolerance can mean that the governments follows a clear
policy to not prosecute certain offences
- This sometimes leads to criminal acts made legal
- Dutch legal system is pragmatic bcs is searches for good
solutions instead of blindly following rules
- It is possible bcs of many alternatives to formal court
procedures
Limits on tolerance: polarization in Dutch society
- On the other hand, more immigration led to more
restrictions and law enforcement on immigrants
- Where law may become stricter in the above described
case, acceptance and tolerance grows towards sexual
equality and drugs
The structure of Dutch law - Subdivide law into substantive and procedural law
and this book - Substantive: rules that establish rights and duties
- Procedural: rules regulating procedures by which rights and
duties can be enforced
- Most common way of dividing national Dutch law is into
public and private law
- Criterion for division is mainly involvement of government
- If it only involves citizens, it will be private
- If it also involves government it will be public
- If law enforcement maybe is the case, it will be public law,
but sometimes the government acts as a private party in a
case. In that case, private law applies
Division in public law:
1. Constitutional law: organizes state and bodies
2. Administrative law: governs the way governmental bodies
act toward citizens
3. Criminal law: law for government, mainly on how to enforce
the law
Private or civil law:
- Characterized by general assumption of equality and private
initiative
- The individual judges whether a legal problem is serious
enough to take to court
