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.
Copyright 1996