Since time immemorial, it has been unbiased judges who have been charged with adjudicating disputes in a professional manner. As independent third parties, they are in the best position to do so, weighing the arguments presented by both sides and determining how our laws must be interpreted. Decisions set legal precedent, imbuing courts with the power to have a significant impact on societal relationships.
But to what extent does a judge’s position as an outsider mean that they lose sight of the context? The personification of the law, Lady Justice, may be blindfolded, but she must still be aware of the world around her. This is why I am so pleased to see more and more developments, in some cases even through the courts, that reserve a role for citizens.
Calling on everyone for help is not a new concept, as is evidenced by the Latin term ‘amicus curiae’, which is literally translated above as ‘friend of the court’. Despite this, it is a call that is not often sent out. We did see an example recently, however, when, on 22 September 2017, the Administrative Law Section of the Dutch Council of State – the highest administrative-law court in the Netherlands – sent out a call for help from ‘everyone’ for the first time in its history. At least as remarkable is the fact that the Advocate-General will be taking the responses into consideration.
In other areas, as well, we are seeing examples of situations in which citizens are deliberately being involved in developing the law. In 2015, the Advisory Division of the Council of State – the body that advises on new laws – issued an unsolicited advisory opinion. This was also an extraordinary and, in particular, new instrument: unsolicited advisory opinions have only been issued twice since 1980. The Public Prosecution Service [Openbaar Ministerie] and the legislature have also demonstrated that they are not blind to public opinions, as evidenced by the websites at https://www.om.nl/onderwerpen/mening and www.internetconsultatie.nl (both in Dutch).
These examples indicate a development perspective that is interesting from a criminology standpoint, among others, such as when it comes to what has become known in the Netherlands as the ‘punitivity gap’ [punitiviteitskloof]. A great deal of research has been done regarding the punitivity gap (those interested might wish to review the Dutch-language study entitled ‘Op de stoel van de rechter’), which examines the difference of opinion between the courts and the public regarding what constitutes an appropriate sentence. In brief, the public often want longer sentences than those imposed by the courts. As a result, the courts are being labelled ‘soft’, and public confidence in the justice system is plummeting.
Increased citizen involvement and courts’ willingness to listen could change this. For the court, citizens’ opinions serve as a sounding board from society; society becomes more broadly represented and more involved; meanwhile, the courts might feel more compelled to explain their decisions in language that – preferably – can be understood by everyone. Developments of this last aspect are fully underway, and are in fact the focal point of the ‘Plain Language Committee’ [‘Commissie Klare Taal’] of the Netherlands Council for the Judiciary [de Rechtspraak], with the intended result to be a two-pronged benefit: the courts will be better informed by citizens and citizens will be better informed by the courts. This will make the courts’ work easier to monitor and hopefully generate broader support for their decisions.
Keep in mind: judicial decisions are not taken through a pure democratic process. Courts do not issue decisions based on the level of support and those decisions are not ultimately taken by citizens. But I do think it will be more democratic than it is now. I have neither the illusion nor the desire for courts to lose the independence of their positions as developers of the law. In contrast to the US, Germany, Sweden, Belgium, and Denmark, justice in the Netherlands is not meted out by laymen. That said, I do see citizens being able to express their opinions as a positive development, and I believe that it will benefit the democratic legitimacy of the interpretation and application of laws and regulations. I look forward to hearing more calls to friends of the court.