Nonjudicial constitutional interpretation: The Netherlands

Publication Type

Book Chapter

Version

submittedVersion

Publication Date

2-2022

Abstract

The Netherlands merits attention as one of the shrinking number of countries that continue to resist assigning principal responsibility to the courts for ensuring constitutional supremacy. Responsibility for evaluating the constitutionality of legislation is instead entrusted to both houses of parliament, ministerial bureaucracies, the Council of State, quasi-autonomous entities, and civil society as well as the courts. A case study of the Netherlands yields several important insights into the practice of constitutional interpretation.First, judicial review of legislation is not essential to the success of liberal democracy or the protection of constitutional rights. The absence of judicial review has not led to anything resembling constitutional failure or underenforcement in the Netherlands compared to other liberal democracies.Second, while an institution like the Council of State may not exist or operate in identical form elsewhere, one encounters functional equivalents that can provide ex ante advice on the constitutional implications of potential legislation. The reality across all constitutional democracies is that responsibility for constitutional interpretation is shared across multiple institutions, including the executive writ large and non-partisan bodies.Third, and following from the previous point, this sharing of interpretive responsibility across multiple institutions means that some form of what we might call inter-institutional dialogue is unavoidable. To be sure, the legislature and the executive may not always play the starring role in constitutional interpretation, as they do in the Netherlands. But even in countries with strong courts that assertively perform constitutional review, they are always a part of the picture.

Keywords

Constitutional interpretation, non-judicial review, Council of State

Discipline

Constitutional Law

Research Areas

Public Law

Publication

Constitutionalism in context

Editor

David S. Law

First Page

216

Last Page

235

ISBN

9781108699068

Identifier

10.1017/9781108699068.011

Publisher

Cambridge University Press

City or Country

Cambridge

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.1017/9781108699068.011

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