The Evolution and Gestalt of the Dutch Constitution

One way of distinguishing constitutions in historical terms is between, on the one hand, modern revolutionary, blue-print, single document constitutions, which have their origin in an identifiable more or less revolutionary constitutional moment—usually connected with some form of political cataclysm (a war or revolution causing political, social and economic collapse)—and, on the other hand, constitutions which are the product of an incremental historical process and in which socio-political developments and evolutions become codified. The constitutional system of the Netherlands is definitely to be grouped in the last category of what one may call ‘evolutionary’ constitutions. It is, in other words, more like the British Constitution and those of the Nordic countries (at least as they were until a few decades ago), and indeed more like that of the European Union than the continental European constitutions of Germany, Italy or France.
Among distinctive features that places it in the group of ‘evolutionary’ constitutions is the multi-source nature of which the Constitution (Grondwet, literally Basic Law, but this is never used in translations into English) is but one source, though an important one, between various sources of constitutional law. Another constitutional document, which is of superior rank to the Grondwet, is the Charter for the Kingdom (Statuut voor het Koninkrijk). It regulates the constitutional relations between the European and Caribbean countries that form part of the Kingdom, in a quasi-federal manner. However, as we explain below, also directly effective provisions of international treaties, particularly human rights treaties, are considered to be a source of national constitutional law, with overriding effect towards conflicting norms. Also, there are important rules of customary constitutional law, particularly regarding the parliamentary system, the principle of monism in the relation between international and national law, as well as certain aspects of the principle of judicial deference towards the legislature.
Other distinctive features are the absence of constitutional review of acts of parliaments by courts without sovereignty of Parliament, an openness to international law and international society, the lack of an explicit constitutionally relevant concept of sovereignty, and an overall low degree of ideology in the text of the Constitution: it lacks a preamble with its attendant rhetoric. Terms like ‘democracy’, ‘the people’ or ‘nation’ are absent so far. We describe these features below. They can only be properly understood when viewed in historical perspective.
Given the evolutionary nature of the Netherlands Constitution, the ‘origin’ of the constitution and its evolution cannot be strictly separated. Which of the texts bearing the name Constitution (Grondwet) should be considered to be the original of the present one is hard to say for reasons that we presently explain, but is not much of an issue. Also, any attempt at identifying original constituent power is meaningless; there has never been a body that could claim to have been a constituent assembly that coined the original, ‘first’ constitution. Most constitutional reforms were the product of political circumstances, often international political circumstances, prepared textually by a committee appointed by the government, only in recent times after consultation and with the approval of the Lower House (Tweede Kamer): the so-called Staatscommissies (Royal Committees). They were not quite like a constituent assembly, though, as we shall see, formally that was called for at the end of the Republic in 1795, by the States-General at its own abolition.
The historical evolutionary nature of the constitution necessitates a format that is slightly different from other chapters in this book in the first two parts. In Part B we sketch the outlines of the historical development of the constitution, which is marked by continuity and incrementalism. In Part C, we describe the institutional parameters of constitutional development. Part D looks at the fundamental concepts and structures of the constitutional system, while Part E concludes this contribution with a discussion of the constitutional identity which inheres in these.