The widow, the neighbour and the pump in the garden pond: how court decisions could respond better to society
People come to court because of a legal dispute, and often think that the court decision will also resolve the underlying conflict. But that is not always the case. ‘Court decisions should provide a better response to the needs and the nature of citizens,’ argues professor by special appointment Rogier Hartendorp. Inaugural lecture on 31 January.
Rogier Hartendorp is professor by special appointment of Societal Effectiveness of the Justice System, an appointment established in collaboration with Court of The Hague where he also works as a judge. The chair was established as a link between academia and the judicial system. ‘My task will be to conduct empirical research on ways to improve the functioning of the justice system and to enhance its interaction with society.’
Case: The widow and the neighbour
A man suffering from a terminal illness installs a new pump in his garden pond because he finds listening to the sound of the water very calming. But the noise of the pump keeps the neighbours awake and they ask the man and his wife to remove the pump. This does not go down at all well with the wife. After her husband has passed away, the relationship between the widow and her neighbour deteriorates further: apparently the widow regularly shouts abuse at the neighbour and eventually the neighbour goes to the police. Mediation and attempts by the community police officer to improve the situation have no success. Finally, the neighbour takes the widow to court accusing her of stalking. The judge dismisses the allegation of stalking, but fines the widow for shouting abuse which had been recorded by a neighbour.
Solving a conflict or settling a dispute
‘If two parties go to court, the judge has to assess the legal dispute before the court, in this case whether stalking has been established’ says Hartendorp. ‘But very often, the judge actually tries to find a solution to the underlying conflict: the dispute between the neighbours that has affected their lives for so long.’ So judges, Hartendorp claims, have to be both dispute settlers and conflict solvers. ‘In a decision, you can include procedures or interventions to work on finding a solution to the conflict. Or when dealing with the case, a judge can apply methods such as mediation, so that the parties come to a better understanding.’ According to Hartendorp, the justice system often has an ideal image of the person seeking justice: rational, honest, capable of showing compassion and accepting the court’s decision. ‘The situation in practice however is quite different,’ says Hartendorp. ‘A well-functioning justice system can be better achieved when courts are more responsive to how citizens actually act during proceedings.’
Rijdende Rechter?
The case between the widow and her neighbour brings to mind cases dealt with on the Dutch TV programme De Rijdende Rechter, where a qualified judge passes sentence in proceedings on location and his decision is legally binding. ‘Here, too, the cases are nearly always about a quarrel that has got out of hand, but which the parties hope will be solved by the Rijdende Rechter.’ But according to Hartendorp, the Rijdende Rechter with his well-known pronouncement at the end of each episode ‘this is my final binding decision’, is more about dispute settlement. ‘He may have solved the legal issue, but the underlying conflict between the complainant and the accused is by no means always settled.’
Community court
Various experiments are already underway in the Netherlands to examine whether the justice system can better address the needs of citizens. The Courts of Rotterdam and Oost-Brabant have set up a sort of community court, where the Court, municipal authorities and the Public Prosecution Service work together to address underlying issues. And The Hague has a community judge who offers simple and inexpensive legal proceedings on location.
Effective court in society
Does the judge then not become a social worker? ‘Certainly not,’ says Hartendorp. ‘There are also a lot of disputes in which the parties just want a decision - a quick legal assessment is what is needed then. It’s about the justice system looking more at what both parties need, and aligning the proceedings to that,’ Hartendorp says. This idea is about a justice system becoming more effective by responding to developments in society. ‘Then you don’t just take a legal perspective in a case, but you also take into consideration what kind of people you have before you, if they understand the proceedings properly and if they want to get a dispute or underlying conflict solved.’ Hartendorp wants to examine how this type of justice system can work, and how it can be combined with the independence, legitimacy and authority of the court.
Societal needs
Back to the case about the neighbour and the widow. How would Hartendorp have approached this case in a justice system that is more responsive to society? ‘Going to court is seen as the ultimate remedy, when all other options have failed. I think that in this case that a community judge, for example, could offer a solution. The judge could have become involved in the situation sooner and could have given more mandatory advice than the mediator or community police officer, so that the argument could have been solved faster or would not have got so out of hand.’ But of course it is easier to judge in hindsight, Hartendorp admits. ‘This case demonstrates that if the courts balance settling a dispute and solving conflicts, the justice system will be more in line with the needs of our society.’
Original Dutch text: Marieke Epping
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