“We have constitutional rules to run society effectively, to protect individual citizens against majorities and to safeguard democracy by holding those in power accountable.” The inherent tension of this triangle fascinates Aalt Willem Heringa, departing professor of constitutional law: “Obviously, you can’t optimise for all of those at the same time. It’s always a trade-off and the circumstances dictate which equilibrium is best.”

Power corrupts

As an example Heringa cites the recent (or current – depending on when or where you read this) pandemic. “In a pandemic, limiting citizens’ individual freedom for the sake of public health is effective.” A temporary carte blanche for the government helps them resolve the problem – but leaves Heringa uneasy. “As a constitutional scholar, I don’t really trust politicians because they want more power.”

In his research and in his upcoming farewell lecture, Heringa argues for a bigger role for courts in the Netherlands. “Courts don’t get enough authority to be a third power that can effectively control parliament and protect citizens.” Increased governmental powers can be for the good of people – e.g. the welfare state – “but we need checks and balances.”

Citizens, says Heringa, aren’t interested in the nitty gritty of politics – and shouldn’t have to be. “They elect a government to smoothly take care of their concerns, be it rising gas prices or crime.” Someone, however, needs to check that process between elections – and for Heringa, impartial courts fit that bill. “Unlike politicians who seek re-election, courts don’t stand to win or lose anything.”

Defending the interests of future generations

The crux is that politicians shape the laws that restrict their own powers. “The Netherlands would benefit if parliament recognised that we lack courts powerful enough to veto the government. Courts in the UK and Germany do step in to resolve big issues.” When Dutch citizens sued their government over its falling woefully short of CO2 emission targets, they won a moral but ineffectual victory. “In the end, the government just about made the target, but only because of COVID…”

The looming climate catastrophe is an example of courts acting in the interest of future generations, where governments and by extension the electorate favour their own short-term interests. “It’s morally wrong that we treat the world like an all-you-can-eat buffet now and leave the tab to future generation.” When courts intervened in Germany, the then-government conceded their failure and brought forward their emission targets. “They made them put more pressure on the current generation but I think citizens appreciate that. Across the board, EU citizens trust courts.”

European integration has contributed much to the complexity of Heringa’s subject. He cites the Kinderopvangtoeslagaffaire – 48 Scrabble points and the childcare benefits scandal, which saw the previous Dutch government resign. They had imposed draconian sanctions on parents suspected of fraudulent benefit claims. “Some were fined double the amount they had received and it mostly affected low-income families.”