Democracy based on the rule of law: Dutch constitutionalism between restraint and pragmatism

The Dutch constitutional legislator has little appetite for grand rhetoric. Since 2022, after decades of debate, a general and unnumbered provision now precedes the Dutch Constitution, stating: “The Constitution guarantees fundamental rights and democracy based on the rule of law.” Prior to this amendment, one would search in vain for the terms democracy and rule of law in the Dutch Constitution. Concepts such as legality and sovereignty are still absent. Terms like Verfassungspatriotismus, Solange jurisprudence and case law on constitutional identity, are virtually unknown in the Netherlands. Restraint and pragmatism are the adjectives most commonly used—not only by observers but also by the legislature itself—to characterise the Dutch constitutional tradition. Nevertheless, the Netherlands is no stranger to major constitutional questions, which frequently spark intense legal, political and public debate. In some areas—climate litigation being perhaps the most prominent example—Dutch jurisprudence has even become globally influential and groundbreaking. Can Dutch constitutional restraint be reconciled with the constitutional vibrancy that sometimes exists in practice? This chapter seeks to answer that question by offering a descriptive analysis of the Dutch democratic and rule-of-law system. The Constitution and its framework of checks and balances serve as the starting point, with the concepts of constitutional identity and constitutional culture providing frames of reference.