L.E. de Groot-van Leeuwen

Dining Out in the Trias Politica: Involvement of the Dutch Judiciary in the Legislative Process

A core tenet of legal theory is the separation of powers between the legislative, the executive and the judiciary. The present paper focuses on one of the relationships within this trias politica, namely the connection between the judiciary and the legislature. The paper will touch on both theoretical and empirical dimensions of the legislative/judiciary nexus. §1 introduces some recent developments in trias politica theory and §2 introduces the paper’s key concepts. On that basis, §3 discusses a number of theoretical issues such as the legitimacy of judicial influences on the lawmaking process and the risk that the judiciary may be drawn into the sphere of politics. §4 then focuses on a relatively hidden aspect of the relationship between judiciary and legislature, namely, invited involvement of the (Dutch) judiciary in the lawmaking process. §5 then presents an empirical exploration of one component of this involvement, the advisory reports of the Dutch Association of the Judiciary to the legislator.