comprehensive and organized summary of all the important articles needed for the preparation for seminars, as well as the paper assignment that will be written during the course Introduction into Criminology for Social science Students, part of the criminology minor of Utrecht University
Taekema introducing
Dutch law
Comparative perspective - Legal systems are divisible into classes or legal families
- Biggest difference between western legal systems is
the division between common and civil law systems
- English and American law systems are characterized by
case-by-case reasoning and judge-made law
- Civil law systems are characterized by abstract
reasoning
- European law systems are pretty alike but still
subdivisible into Romanistic, Germanic and Nordic
systems
- The Dutch system is seen as Romanistic mostly bcs The
Netherlands were occupied by Romanistic France in the
Napoleonistic times
- Some aspects also have been influenced by the
Germanic systems
The Netherlands in - Dutch law is influenced by European law, but the
European context Netherlands also have a voice in the creation of
European law
- European law is supranational and thus has power over
national legal systems
- Because the influence of the Dutch on European Union
level business has diminished, Euro-skeptic attitudes
have increased
Sources of law Enacted law (aangenomen wet)
- Enacted law is law made by bodies that have the power of
law-making
- Can be divided into four categories: treaties(verdragen),
constitution(grondwet), statutes(statuten), governmental
regulations(overheidsvoorschriften)
1. Treaties
- International rules are more and more important
- If a treaty is approved, it can be published into law
- Monistic system in Netherlands: treaties become law
automatically
- Dualistic system(not Dutch): rules have to be transformed
into national law by legal acts
- Sometimes it is up to the European states themselves to
incorporate some rules into their legal systems the way they
like
2. Constitution
- Highest national law in the Netherlands
- Gives citizens basic rights
, - Basis to governmental organizations
- States process of elections
- States rulemaking bodies and powers
3. Statutes
- Enacted law made by parliament and government together
- Government may only limit citizens freedom on basis of
general laws
- All governmental action has a basis in statutory law
4. Governmental regulations/decrees
- Additional rulemaking delegated by statute to other
governmental bodies
- Statutes are mostly framework for more specific regulations
- In case of conflict between rules, the higher rule precedes
the lower(treaties over constitution, constitution over
statutes or acts of parliament)
Case law(jurisprudentie/gerechtelijke uitspraken)
- Law formed by judicial decisions
- Judges interpret the law in a certain way. Through
jurisprudence, they can compare verdicts and expand on
other cases
- Rules made in relation to a case
- General rule is not as specific as case rule
- Most important court is Dutch Supreme Court
- If a lower placed court makes a decision, it does not go
under decisions of supreme court, like in common law
countries.
- When court’s decision goes against supreme court decision,
they can appeal to higher court. In last instance, supreme
court will overrule its own previous decision
- Normally lower courts use supreme court’s decisions as
authoritative source
- In case of conflict between case law and enacted law,
usually the latest source is used.
Unwritten law
- Law which is not described in written documents
- Two kinds:
1. Customary law (gewoonterecht):
- If a rule is practiced and seen as law, this unwritten rule is
regarded as valid customary law
- The condition that a custom was only law if it was
recognized in a statute has been abolished
- Example: government must resign if it no longer has the
trust of the second chamber
2. General principles of law
- Abstract norms that refer to basic legal values and underlie
the whole of the legal system or large parts of it
- They are used to supplement legal rules and support
interpretations of rules
Interaction between legal sources
- Question in court: how does one source of law weigh in
relation to another
, - Problem in relations with international and European and
national law is the plurality of legal sources.
- Sometimes the court interprets international rules
differently from the government or legislature
Dutch law in context Religious and cultural diversity
- Netherlands have a reputation for tolerance
- Characteristic political system: pillarization (4 pillars in
society/4 groups)
- End of 1960’s guest workers came, lot of immigration still
Pragmatic attitude
- National government consists of coalition of 4 elected
parties
- Example: specific case law for euthanasia, which was later
laid down in statute bcs in favour of political majority
- Tolerance can mean that the governments follows a clear
policy to not prosecute certain offences
- This sometimes leads to criminal acts made legal
- Dutch legal system is pragmatic bcs is searches for good
solutions instead of blindly following rules
- It is possible bcs of many alternatives to formal court
procedures
Limits on tolerance: polarization in Dutch society
- On the other hand, more immigration led to more
restrictions and law enforcement on immigrants
- Where law may become stricter in the above described
case, acceptance and tolerance grows towards sexual
equality and drugs
The structure of Dutch law - Subdivide law into substantive and procedural law
and this book - Substantive: rules that establish rights and duties
- Procedural: rules regulating procedures by which rights and
duties can be enforced
- Most common way of dividing national Dutch law is into
public and private law
- Criterion for division is mainly involvement of government
- If it only involves citizens, it will be private
- If it also involves government it will be public
- If law enforcement maybe is the case, it will be public law,
but sometimes the government acts as a private party in a
case. In that case, private law applies
Division in public law:
1. Constitutional law: organizes state and bodies
2. Administrative law: governs the way governmental bodies
act toward citizens
3. Criminal law: law for government, mainly on how to enforce
the law
Private or civil law:
- Characterized by general assumption of equality and private
initiative
- The individual judges whether a legal problem is serious
enough to take to court
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