The case against Geert Wilders and the Chipshol affair are important stress tests for the Dutch legal system, according to sociologist of law Prof. Marc Hertogh of the University of Groningen. ‘It’s one thing for the legal system to function well in fine weather, when no-one challenges the authority of the judges. Now, however, it has to prove that it can also function adequately in a storm.’ Hertogh is convinced that the judiciary must reform itself. ‘We need an open public debate on this subject because the legal system is too important to be left to the judges alone.’
The fact that Geert Wilders’s lawyer has challenged the courts no fewer than three times and that a judge has been accused of perjury in the Chipshol affair cannot be brushed off as incidents, in Marc Hertogh’s opinion. ‘Many judges seem inclined to say that a hundred thousand cases have gone well, and it’s merely coincidence that a few are going wrong now. I disagree. Recent research conducted in Utrecht has demonstrated that between 2005 and 2009, the number of challenges increased by over eighty percent. The Wilders case, the Chipshol affair and the growing criticism of the European Court of Human Rights illustrate the much wider trend that citizens no longer automatically accept the judgement of figures in authority.’
You can see the same problem in the medical world and in politics, claims Hertogh. ‘There they are taking measures – gradually, and with varied success – to regain the trust of the citizens. Now it’s up to the judiciary to show that it is also moving with the demands of the time.’
The legal sociologist claims that the judiciary is organized in a way that was self-evident twenty-five to thirty years ago. ‘Then we thought that judges had to be closed, remote and formal. But times have changed. Those characteristics are now regarded as weaknesses. We now think that judges must be able to convince citizens of why they are doing things the way they are. The judiciary should respond better to that.’
The decreasing authority of the judiciary cannot be resolved with one or two simple changes, according to Hertogh. ‘Introducing trial by jury is really not the solution. We will have to find other ways of involving citizens more in the work of judges, and to show them that they are being taken seriously.’
The professor thinks it important that an open social debate is held about the way the judiciary can be reformed. ‘Citizens, politicians, academics, judges – all parties must be able to participate in this debate because the legal system is too important to be left to the judges alone.’
Hertogh also has some practical recommendations for the judiciary. ‘First, I would say let the courts make clear why a particular judge has been assigned a particular case. Then you won’t have any retrospective problems, like those in the case against Geert Wilders. That’s a simple measure that could be introduced tomorrow.’
Hertogh also thinks the complaints procedures should be updated. ‘I can submit a complaint to the National Ombudsman about any policeman or official if I think I’ve not been treated correctly, but if I have a complaint against a member of the Supreme Court, the only place I can turn is the Supreme Court itself. Many citizens just don’t understand that. That’s why we should also introduce an external, low-threshold complaints procedure for member of the Supreme Court.’
The judiciary, Hertogh states finally, must also show that they are taking the criticism seriously. ‘When something goes wrong, as in the Chipshol case, somebody is suspended or made to take early retirement and you never hear anything about it again. That has to change. Show what measures you are taking to prevent the problem recurring. You could, for example, show that you have adapted your appointments policy, or that judges are going to be trained in a different way from now on. That’s the only way you are going to convince citizens that you really deserve their trust.’
Prof. Marc Hertogh (1968) is professor of Sociology of Law at the University of Groningen. He studied law at Leiden University, where he gained his PhD in 1997. He then worked as a postdoc and as lecturer and associate professor in sociology of law at Tilburg University. The main themes of his research include the trust in the legal system and the social experience of law and the judiciary.
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