Judicial feedback. An empirical-legal study of the interaction between the judiciary and the legislature in light of the separation of powers in the Netherlands

This research places judicial feedback at its core. Judicial feedback refers to the practice whereby judges, in the exercise of their duties, identify shortcomings or inconsistencies in legislation, and deliberately convey such observations to the legislature, either through their judgements or by other means. The legislative process is complex and can give rise to errors and shortcomings. For example, legislative provisions may be unclear or inconsistent or they may conflict with higher norms. Additionally, the compliance with, implementability, enforceability, or effectiveness of legislation may fall short. For example, in a ruling on the Law on reparation in relation to the childcare benefits scandal [Wet hersteloperatie toeslagen] a judge added a “personal note” to draw the legislature’s attention to ambiguities and unintended effects. In a similar vein, the President of the Dutch Supreme Court sent a personal letter to the Minister of Social Affairs highlighting discriminatory aspects of the Participatiewet, leaving it to the legislature to address these shortcomings.These and other examples of judicial feedback formed the starting point of this study and illustrate the diverse ways in which judges can provide feedback to the legislature. 

Against this background, two main questions have been formulated: (1) in what ways does judicial feedback occur and how does it arise, and (2) how does this practice relate to the separation of powers? These questions have been brought together in the following central research question: How can the practice of judicial feedback within the Dutch constitutional order be described and interpreted?

The main finding of this dissertation is that whether and how a judge provides feedback depends closely on that judge’s understanding of their role within the constitutional system. Judicial feedback therefore serves not only to signal legislative errors or shortcomings but also forms an expression of the judiciary’s constitutional conception of its task. The dissertation is structured in three parts that together lead to this conclusion. Part I explains the theoretical, conceptual and methodological foundations based on Grounded Theory. Part II presents the most important empirical findings and summarises them in a flowchart. Part III answers the main research question by describing the empirical practice of judicial feedback, positioning it as a form of constitutional role performance, and examining it through the lens of separation‑of‑powers models.