VOL.6 NO. 9 (AUGUST, 1996) PP. 122-123
DUTCH LEGAL CULTURE by Erhard Blankenburg and Freek Bruinsma. 1994. 2d Edition. Kluwer. 77 pages. Reviewed by Sally J. Kenney, Associate Professor, University of Minnesota.
Blankenburg and Bruinsma, two sociologists of law, have written a very accessible descriptive overview of the Dutch legal system. This short book(77 pages with lots of charts and pictures) reads more like a primer of Dutch law or chapter of a comparative law text rather than a dense scholarly tract. The authors describe it as "a little tourist guide" (2).
They define the concept of legal culture as including four components: law on the books, law in action as channeled by the institutional infrastructure, patterns of legally relevant behavior, and legal consciousness, particularly, a distinctive attitude toward the law among legal professionals (13-14). The Dutch legal culture is pragmatic and flexible, rather than rigid and formalistic. It favors consensus,inclusion, discussion, and negotiation (if only among all relevant elites) rather than conflict and dichotomous, legally-enforceable outcomes. The absence of judicial review of legislation coexists with wide judicial,administrative, and prosecutorial discretion. The Europeanization of legal practices, greater public concern about crime, and a reduced willingness to fund a generous welfare state, however, are eroding the distinctive aspects of Dutch legal culture.
I agree that legal culture is not reducible merely to public opinion or attitudes of legal professionals. Institutions both reflect the broader culture and shape it. Institutions and legal culture are, as we say,mutually constitutive. Yet I am troubled by two aspects of the authors' use of the concept legal culture, as one who is neither a specialist in legal culture nor Dutch law. First, legal culture has that slippery "residual variable" quality about it -- shared by the concept political culture. It is everything and nothing simultaneously. It is the totality of laws,practices, and opinions. And it somehow simultaneously stands apart from these things and effects how they work. It is both cause and effect. Yet the strongest evidence of the importance of legal culture is the different outcomes produced by similar structures in two different countries. For example, the Dutch and the British may both have informal tribunals for legal conflicts over social security, mental health, and labor, yet in Britain, the tribunals will operate formally and legalistically and in the Netherlands, informally and flexibly.
Second, the concept of legal culture is both too static and too monolithic.Stereotypes about national differences, whether in people or legal systems,do capture important differences. On the other hand, the simplification(and even ossification) of those differences fails to capture the contradictions within a culture and how various dominant characteristics are contested. Exploring the contradictions and the exceptions, rather than declaring the definitive characteristic, can be instructive and may provide a more complex view of legal phenomena.
Consistent with a sociological approach, Blankenburg and Bruinsma declare that legal culture is defined by means of socio-legal indicators (3). Page 123 follows: And the most important indicator is the civil litigation rate (5) -- one that is comparatively low. Correspondingly, compared to its most-similar neighbor Germany, the Netherlands has a much smaller legal profession.Dutch legal professionals are pragmatic, cost-conscious, and result-oriented. Institutional arrangements and patterns of professional interaction seek to avoid rather than initiate legal procedures. Thus,"legal cultures include sets of institutions which remain in the shadow oft he legal system" (7).
The authors clearly set out the structure of the courts, the limited nature of judicial review, the nature of legal education, the composition of the judiciary, the division of legal practice and law firms, and the types of legal work non-lawyers can perform. They document the widespread use of summary proceedings (kort geding) in civil litigation, the entrepreneurial style of district court presidents in promoting them, and the subsequent reduction in cases that go to trial. The chapter on criminal policy describes the comparatively tolerant approach of the Dutch to crime and the large role of prosecutorial discretion. Although the Dutch are becoming increasingly alarmed about the escalating crime rate and the European Court of Human Rights has held that the Netherlands must sacrifice some informality in favor of more formal due process, the Dutch still differ considerably from their neighbors in alternative sentencing, and in the low number of people imprisoned.
The "nonlegalistic leanings [of] Dutch legal culture [which] favoured a pragmatic public administration, a mild penal climate and an informal civil justice" (76) are highlighted rather than fully explored in this book. The authors identify the paradigmatic cases that best exemplify Dutch legal culture (in addition to bicycle theft) as a policy (beleid) of tolerance of"soft" drugs and prostitution, lenient criminal sentencing, physician assisted suicide, and access to abortion. Abortion gets a mere mention; the other three in this list merit 2-3 paragraphs.
The book is useful for students of comparative law or European politics who want a very brief, yet theoretically-nuanced overview. Scholars such as myself, who want a basic reference on judicial review, dissenting opinions,court structure, or composition of the legal profession will also find the information helpful. Other scholars of comparative law or legal sociology will want to pursue the scholarly journal articles cited.