Marc Hertogh

What's in a Handshake? Legal Equality and Legal Consciousness in the Netherlands

In this article, I examine how ordinary citizens and legal professionals in The Netherlands understand non-discrimination law, using the theoretical framework of legal consciousness. In 2006, the Dutch Equal Treatment Commission ruled that a school was wrong to suspend a female Muslim teacher who, for religious reasons, refused to shake hands with men. This ruling provoked a wave of controversy. This article examines to what extent these critical reactions were indicative of the overall level of public support for the Dutch Equal Treatment Act. I first provide a brief summary of Dutch non-discrimination law. Next, following recent critiques in the literature, I introduce three modifications to the original legal consciousness framework. Peoples understandings of legal equality are then examined using data from a large-scale multi-method study, which included an online survey, case-studies and in-depth interviews. Moreover, I provide a brief reconstruction of the handshake case. I argue that the controversy in this case was not an isolated incident, but an important illustration of how non-discrimination law matters — or fails to matter — in The Netherlands.

Why the Ombudsman Does Not Promote Public Trust in Government: Lessons from the Low Countries

Most public sector ombudsmen claim that their work will strengthen or restore citizens confidence in government. However, empirical research provides little support for this assumption. Based on studies from Belgium and the Netherlands, this article offers two explanations for this limited effect. First, it will be argued that (Dutch) administrative law is based on three ‘mythical images’ of the average complainant. Because these images do not correspond with reality, many people feel alienated from the ombudsman. Second, although the ombudsman aims to reach all types of citizens, most complainants are highly educated, white-collared, politically interested men. Yet the ombudsman is less successful in reaching people who are critical about politics and the justice system. Building on these findings from the Low Countries, the article ends with several suggestions which may help increase the potential of the ombudsman in all countries to promote public trust in government.

Crime and Custom in the Dutch Construction Industry

Abstract In 2001, the construction industry in the Netherlands was at the heart of many public and political debates. A television documentary suggested that all major construction companies were involved in an illegal clearing system that colluded in price offers for public works. After this TV program, the Dutch parliament decided to conduct a parliamentary enquiry which showed a widespread use of cartels and structural “bid rigging” within the Dutch construction industry. Despite the fact that the clearing system of the Dutch construction industry was prohibited by the European Commission in 1992 and by the 1998 Dutch Competition Act, Dutch builders continued their illegal activities as if nothing had changed. This case raises several important questions. Why were these practices so widespread in the Dutch construction industry? Why did Dutch contractors continue these practices even after they were made illegal? And–in more general terms–what does this case tell us about the interplay between state-regulation and self-regulation? Most previous studies focus on the lack of compliance in the Dutch construction industry with antitrust law. By contrast, this paper uses a “constitutive” approach. Rather than focusing on legal compliance, I will use the theoretical framework of legal consciousness to focus on peoples understandings of law. Thus, rather than asking how much does law matter, this paper asks: how does antitrust law matter in the Dutch construction industry?

When Politics Comes into Play, Law is No Longer Law : Images of Collective Legal Consciousness in the UK, Poland and Bulgaria

This paper examines the idea of a common European legal culture by exploring its foundational component, ‘collective legal consciousness’, in three EU states: the UK, Poland, and Bulgaria. Using a comparative research design and a variety of methods of data collection, it suggests that underneath the thin layer of EU consensus there are some fundamental differences in perceptions of law. The evidence shows that legal ideas are infused with perceptions of the political system. This finding suggests that the creation of a shared European legal culture depends on the prior formation of a common transnational polity right across the EU, together with a sense of political identity and of trust in the legitimacy of the European political authorities. The paper also demonstrates the multi-layered character of collective legal consciousness, allowing different images of law to coexist, underpinned by the perception of the source with which each image is associated.

Nobody's Law : Legal Consciousness and Legal Alienation in Everyday Life

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The Myth of Dutch Legal Culture

This chapter lays out the empirical context of the book and reviews all major public opinion surveys from the past decade to analyze the public opinion climate in the Netherlands. There is a widely held belief—both among academics and policymakers—that strong popular support for the justice system is a prominent feature of Dutch legal culture. This image is usually based on surveys which focus exclusively on public trust. However, this chapter argues that when we consider all survey evidence (and not only those studies that focus on trust), the legitimacy of the Dutch justice system is no longer self-evident, but has become structurally contested. Contemporary Dutch legal culture is not characterized by ‘solid support’ but by ‘sullen toleration’ of the justice system.

Research Methods: Through the Lens of Legal Consciousness

This chapter discusses the methodological approach of this study. Starting in the 1980s, legal consciousness research focused on four components: more emphasis on the role of law in society; more emphasis on the role of ordinary people; the advancement of ‘critical empiricism’; and a shift in focus from measurable behaviour to meanings and interpretations. This (critical) framework is modified and replaced by an alternative approach, which is characterized by: the focus on law as both an independent and a dependent variable; the focus on both the haves and the have-nots; the emphasis on research participants’ views and voices; and the use of mixed methods. In Part II, this (secular) approach will be applied to examine the process of legal alienation in three case studies.

Front-Line Officials and Public Law

The third case study examines how front-line officials move away from public law. The chapter zooms in on a small group of officials who were all actively involved in the re-development of a run-down neighborhood in the Netherlands. More in particular, this case explores how they understand the concept of the Rechtsstaat (rule of law), which plays a central role in Dutch constitutional and administrative law. The chapter concludes that these local street-level bureaucrats perceive public law as distant, alien and illegitimate. Most officials are ‘cynics’ (with strong feelings of ‘legal powerlessness’ and ‘legal cynicism’ toward public law) while some of them also qualify as ‘outsiders’ (with clear signs of ‘legal value-isolation’).

Contractors and Competition Law

The second case study examines the way in which contractors in the Dutch construction industry move away from competition law and EU antitrust regulations. Most data from this case are drawn from public hearings with contractors in a parliamentary enquiry which showed a widespread use of cartels, aimed at price-fixing and market-allocation. The chapter shows that members of the Dutch construction industry feel disconnected from competition law, which leads to a process of legal alienation. Most contractors are ‘cynics’ (with some signs of ‘legal meaninglessness’ and ‘legal powerlessness’, but with a strong sense of ‘legal cynicism’), while some qualify as ‘outsiders’ (with strong feelings of ‘legal value isolation’).

Marking the Unremarkable

The first half of this chapter summarizes the main findings from the three case studies. All cases illustrate a disconnection between ‘internal’ and ‘external’ understandings of law. The cases also cover a wide spectrum of legal alienation. Finally, they suggest that legal alienation is a process rather than a state. The second half of this chapter aims to generalize these findings beyond the specific context of the cases. First, it is estimated that—in the Netherlands—more than five out of ten people are affected by some form of legal alienation. Second, legal alienation can affect both ‘haves’ and ‘have nots’, and is not—by definition—associated with socially marginalized groups. Finally, legal alienation erodes legal compliance.