NCJ Number
127163
Journal
Law and Society Review Volume: 24 Issue: 3 Dated: (1990) Pages: 745-780
Date Published
1990
Length
36 pages
Annotation
The growth of the Hoge Raad der Nederlander (Dutch Supreme Court) from an insignificant body to a politically important institution in Dutch society is investigated. The article discusses the relation between changes in the appointments to the Court and its political and nonpolitical role in Dutch society from the court's founding in 1838 to the present.
Abstract
The basic theoretical question addressed is how judicial independence, especially judicial policy-making, can be reconciled with democracy. In most democracies, as judicial policy-making expands, partisan political involvement in the appointment process for justices increases. Two models of appointments to the highest courts prevail. In one model, most justices are appointed from the judiciary and appointment to the highest court forms a natural final position in a lawyer's career; partisan political influence is indirect or absent. The second model is the political appointment of justices, especially by partisan affiliation: the parliament or a parliamentary committee plays an important role. Models of appointment and political activity appear to be related. The evolution of the political importance of the Dutch Supreme Court is from a strict adherence to the text of statutes to one that interprets statutes. During the past two decades, the court has even started to function as a substitute legislature in many cases. However, the present form of recruitment of justices is in contrast with the Court's political influence. The article predicts that an autonomous development of the political role of the Dutch Supreme Court would force the Dutch Parliament to interfere with the appointments in order to have more political influence. 7 cases cited, 46 footnotes, 3 tables, and 80 references (Author abstract modified)