Hansko Broeksteeg on political judges

Hansko Broeksteeg
In the Netherlands we are said to be dealing with political judges: do judges really take too much of a liberty to sit on the legislator's chair?
Hansko Broeksteeg
Current role
Assistant professor of Constitutional Law

From various political corners, the judge is called 'too political'. For example, in early 2021 the Dutch party VVD claimed, in an election programme that was subsequently amended, that the courts were intervening ever more frequently and further in democratically taken decisions. Are judges really increasingly sitting in the legislator's chair? And is the relationship between law and politics under pressure as a result?

To answer this question, we must first look at the definition of a 'political judge'. This is a judge who takes up too much of the freedom of the people's representation, sits in the legislator's chair and allows himself to be led by his own opinions. The criticism is therefore mainly that the judge should not take the legislator's place. In the Dutch Urgenda case, for example, the state was ordered to do more to reduce greenhouse gas emissions. But is the criticism of these kinds of court rulings well-founded? Judges only make these kinds of decisions within a fixed legal framework. Sometimes these are international standards, such as international climate treaties in the case of the Urgenda case. In the Dutch nitrogen emission verdict, too, the legal and international environmental legal framework was applied. So there is simply the application of legal norms. Politicians may, of course, criticise court rulings under the right conditions. But after the court ruling, the ball is in the legislator's court: they can amend the law if they wish.