Constitutional adjudication in the era of globalisation: the Netherlands in comparative perspective

Abstract

This essay is devoted to the apparent paradox of a constitutional system which is open and prepared for the internationalization which comes with globalization, yet does not allow constitutional adjudication as far as review of acts of parliament against the constitution is concerned. Firstly, we locat the Netherlands constitutional order in the landscape of comparative constitutional systems within the British-Scandinavian family of constitutional traditions. This reflects on the issue of constitutional adjudication. Next we explain how the power of courts to review the compatibility of acts of parliament against directly effective treaty provisions has turned these into sources of national constitutional law, both in theory and in practice. This is contrasted to the prohibition for courts to review acts of parliament against the provisions of the Grondwet, which requires us to determine the scope of that prohibition, just as we describe the scope of the power to review them against treaty provisions. Subsequently, we briefly discuss the prime motive for a pending proposal to abolish the prohibition. In conclusion we reflect on the necessity of changing our concepts of constitutional review prevalent in Europe in light of a broadening of sources of constitutional law. At the same time our conclusions lead us to reflect on the paradoxical nature of globalisation expressed in the catchphrase ‘the global is local’, and how it plays out in the political mood of the moment as regards the criticism of European courts.