NCJ Number
79831
Journal
Justitiele verkenningen Issue: 3 Dated: (1978) Pages: 18-41
Date Published
1978
Length
24 pages
Annotation
The history of and arguments for participation of the laity in the court system of the Netherlands are outlined.
Abstract
The history of participation of the laity in the administration of justice is characterized by gradual exclusion of lay elements. In general, the practice of law has exhibited a growth in bureaucratization and professional expertise, especially during the 19th and 20th centuries. In Germanic times, individuals played a crucial role in legal decisions, but when law developed as a field of study after the 12th century, professional authority eclipsed the layman. The role of the laity in law gained ground again after the French Revolution under the influence of the English common law system. Jury trials never gained a foothold in the Netherlands, which was not as involved as France in a middle-class rebellion against the privileges of the nobility. In the Netherlands today, the most common form of lay representation in legal bodies is the lay representative of special interests on the Board of Labor. Proponents of lay participation in the administration of justice argue that citizen participation is a form of self-help which guarantees against excessive exercise power by the State and judges, that lay participation makes the public more willing to accept judgments, and that the quality of the administration of justice will be improved by the technical and social knowledge of lay representatives. In general, however, it has been the concrete political and social situation rather than rational reasons that influenced participation by the laity. Recent research suggests that there is actually little difference between the 'irrational' decisions of the laity and the 'rational' decisions of professional judges. As the formal rules have become more abstract, lay participation has been discouraged. At the same time, the gap between abstract law and real applications has encouraged use of lay mediators. In the Netherlands, lay participants have been most used as a means of equalizing class differences between judges and defendants, as special representatives/arbitrators in labor board negotiations between management and labor, and as consultants for expert knowledge of a nonlegal nature. A 40-item bibliography is supplied.