Appeal to Supreme Court II (english)
Supreme Court of the Netherlands
2500 EH The Hague
The Netherlands 30 March 2010
Case number: F 09/3608
Re.: conclusion/reply in appeal in cassation Your document number: 4803761
Subject: Is there life after death?
The resurrection of the spirit of thelaw or declared dead
Dear representatives of the Supreme Court of the Netherlands,
On Friday 12 March I received your letter dated 10 March and, enclosed, the statement of defence from the Minister of Finance and, speaking on his behalf, the Director General of the Tax and Customs Administration.
In this letter, the Director General writes the following:
“The court has ruled that interest is charged in business transactions relating to capital provisions and that that does not conflict with any national or international rule of law. This conclusion attests to a correct interpretation of the law.
On the basis of the above, I am of the opinion that the appeal filed will not lead to a review of the contested ruling”.
Self-assured and without any question marks, the Director General writes his defence concisely and apparently without a shadow of a doubt. A privileged and comfortable position. The letter from the Supreme Court itself states that I could clarify the issue in person, but that in practice this is rarely done. However, should I want to clarify the issue, I could only do so via a lawyer.
Perhaps you will understand that finding the right lawyer1 in this case is not an easy task. When they can fathom the issue and have the courage to accept the consequences – largely, deep down – it is highly likely that a lawyer will abandon the case. I shall try to explain to you why. The legal proceedings that I have initiated aim to legally question the most important politico-economic assumption, not only in the Netherlands, but globally, because, according to the plaintiff2, this assumption has become a breeding ground for chronic injustice. When a lawyer intrinsically understands this and is in a position to expound on this in an appeal, they will almost certainly end up dealing with an inner conflict.
Because this lawyer will simultaneously be questioning his current means for bringing home the bacon. When you question something as fundamental as interest – whether we want it or not, our financial and economic world is built on little more – you call the world to account and this world is one that pays a lawyer3 to an important degree. Questioning that world means hazarding your own current security. Such a strong sense of justice is probably still felt when you start to study (law), but in most cases quickly ebbs away after the first few years of practical experience when we adapt to the predominating mores, because that’s the way it goes, I can’t help it. You adapt or you go and live somewhere where autocracy is still possible. This is the reality, also in other parts of society. The question of whether something is just or not and testing it against our conscience loses strength and substance because reality is simply so recalcitrant. If you want to take care of yourself and your family in a world based on competition, you are forced to back down idealistically and morally. It is this game of blackmail that we play in ourselves and against others that is being judged in this appeal. It is perhaps bitter to say, but the legal profession and the legal sector flourishes better financially in an unjust society than in a just one and even more so in a competitive society! A question of (unintentionally/unwittingly?) creating supply and demand.4
So, in this appeal we need to ask ourselves whether we are all busy together endlessly compromising justice at the expense of democracy and the constitutional state because of the insecurity about our own existence in the short term.
In reply to the Director General’s brief statement of defence and as part of this appeal, I find it necessary to attempt to outline the basis for the following:
An isolated hierarchy of power resulting from mutual competition will:
1. create chronic ambiguity and confusion
2. avoid individual and collective responsibility
3. concentrate on maintaining and strengthening power structures (centralisation), rarely question itself and thus create very little restorative/corrective capability within the system
4. thwart integration, participation, democratisation and direct communication
5.favour winners at the expense of the public interest
6. discourage identity, autonomy, authenticity and independence
7. lead to uncontrollable politics hiding behind a mountain of impotent legislation and regulations and an increasingly stifling bureaucratisation
8. lead to an institutionalisation/centralisation of established interests, both public and private, thereby blurring and denying inner conscience
9. discourage diversity, creativity and individuality
10. create little room for reason, justice and objectification of reality
11. be a continuation of the misshapen compromise between securing profit, on the one hand and taking responsibility, on the other, in which the compromise winner is already known in advance
I am talking about an isolated hierarchy of power. Although the hierarchies of power in the Netherlands and the West are based on mutual competition, they are thankfully not completely isolated. Technically speaking, there is a reasonably well functioning legal system and, likewise, a reasonably well functioning democracy. These are achievements that we should nurture, and for which many have fought and are still fighting. During the sessions at the tribunal and the Supreme Court, I was given the space to say what I wanted to say and in some instances I even felt a certain involvement. It facilitated a discussion between people from different backgrounds and with different responsibilities, but there was, nevertheless, a sense of exchange. That can only happen when there is mutual respect and that affected me, because I had prepared myself for cool technocrats who would only be doing their job because they get paid for it. The following quote illustrates the fact that the topic is, however, considered a burning question: You do not think that we will be questioning the financial system here, do you? And again in the ruling on 28 July 2009: The court expressly sets aside the question of whether a ban on charging interest is advisable as the stakeholder suggests. The content of the issue I raised was not discussed, under the guise that even the European court imposes the obligation on parties to pay interest on payments imposed by the European Court in case these are made after the expiry of the term of payment set by the Court …. This only pushes the apparently overheated issue even further away or simply ignores it. The fact that we have already appointed one part of society as the winner – the financial world with as its current partner in crime the government which, in relation to this fundamental point, unintentionally and unobtainably5 ensconces itself above the law – apparently cannot or will not register with representatives of the Dutch constitutional state. The least the Supreme Court could establish is that this question places us in a legal no man’s land, although personally I do not think that that is the case when you consider constitutional and human rights. The legal system has agreed to the difficult task of being the guardian of social equilibrium. I have tried to show that the assumption that money is worth money has, over the course of time, resulted in a centralised hierarchy of power at the expense of humanity and society, which is comparable to the rise and institutionalisation of the Catholic faith. Funnily enough, the word credit is related to the Latin word credo, which means faith. Of course we need faith (hope) and trust in society, but only when we restore our own faith in humanity can we go ahead and build a more just society. Until that time, we will be left at the mercy of arbitrariness.
When we collectively give away power to an assumption, ultimately a hierarchy of power will be created on the basis of the laws relating to that assumption. Whether we want it or not, this will result in a monopoly of power if we or the legal system do not remedy this. Irrespective of the form of the original assumption, the danger is that power will be centralised at the expense of diversity and independence (self-reliance, autonomy) of individuals within the larger whole.
Power should, therefore, be experienced in a decentralised manner by everyone, and carried by society as broadly as possible. This can only happen when people can agree to collective foundations. These foundations will never come about from mutual competition which, in an ever more densely populated world, demands that we live our lives at the expense of others. Afterwards, profit is pruned away supposedly to restore equilibrium. This will never create a communal bond between people and we will ultimately become a plaything of power structures and conditioning. As such, the institutionalised power of the financial world and the resulting servility of the government and society are part of this appeal and should be discussed.
Why is it so difficult for our democracy to work? If it is really that economical6 to compete, the stupidest thing a person can probably do is delegate power to something that says it represents them. You just know that you are going to be disappointed. I am not against delegated democracy, but it has to be able to operate on behalf of society. Delegated democracy is also trapped by having to win elections or debates, for example. Dressing a message up differently in the hope that the voter will like it better or consider it more sympathetic or improved. However, by doing so we continually deny the basis, which, in legal terms, is the constitution that regards everyone as equals with equal responsibility. Within the current set-up, ‘having to score’ is and remains a lot of hot air. The sale and upkeep of a bureaucratic illusion resulting in a social-liberal delusion, in which the socialists want the bureaucratic illusion tobenefit everyone and the liberals want it to benefit the individual that has created it. Endlessly pussyfooting around, sabotaging the other’s opinion instead of searching for consensus, putting into practice this collective basis, which, in legal terms, comprises the constitution and the European Convention on Human Rights. If we do not put this into practice, we will continually need new legislation and regulations to compensate, but, on balance, nothing will change.4
It is the duty of politicians to formulate clear frameworks, laws and regulations of which, in my view, the constitution is the most important. However, these should be put into practice by people, wherever they are in society. Connecting people and experiencing that individual and collective responsibility is the key task for governments. This can only happen when the power citizens have delegated to governments to create the prerequisites for society is returned to society for people (including governments!) to fully put into practice. Only in this way can the gap between politics and citizens be closed.
Institutionalised power is the biggest danger to compliance with the constitution. In his book The Wisdom of Crowds, James Surowiecki writes in an original way about the conditions for a democracy to be able to come to life:
Elements required to form a wise crowd are: diversity, independence, decentralisation and aggregation (coordination, a system in which private judgements are turned into collective decisions).
As an autonomous phenomenon, power will have none of this. From the point of view of power, democratisation and constitutional state are nothing more than forms of anarchy that should immediately be crushed. The challenge of this appeal is to get hierarchy (something that is normal within society) and therefore also power to join forces with justice and democratisation. This will allow the natural authority of governments to be restored.
It is not always easy to stand in my shoes in these proceedings, but I certainly would not have found it any easier if I had served on the Supreme Court and had to come to a just ruling on the issue I have raised. Looking the other way would not have been an option for me; I would want to formulate a ruling in which justice prevails and which simultaneously creates the space for people to feel that they are a part of something and that they can take control again by working together locally and internationally and getting a grip on their lives with others again. I do not know if a ruling that does right by every citizen in Dutch society is possible without hope losing out to fear, without realism and creativity losing out to frustration and hatred. And yet that is what I asked the court to do, to provide such a ruling. In an already orphaned society such as ours, many people may experience this as a double betrayal or feel even more left in the lurch than is already the case. That is the difficult hurdle and apparent paradox that we are obliged to overcome, should we still believe in democratisation and the constitutional state.
The difficult message that we need to convey is that the apple we took to market is not an apple plus ten per cent, but just an apple – no more, no less. This means that from the top to the bottom of the hierarchy we should get rid of the bureaucratic reward, the mathematical leverage and the accounting corruption on which we have become so dependent and that has completely corrupted our communication and, even worse, made it impossible in many cases. It has significantly conditioned our thinking and trading and turned them into a technocracy, causing us to live in two different worlds; one in which we know full well that an apple is an apple and the other in which an apple is an apple plus or minus 10 percent, thanks to what we call the free-market system. No matter how long or short we discuss or analyse this, we have pulled the bureaucratic wool over our own and others’ eyes and, when all is said and done, neither we nor the economists nor the politicians can see the wood for the trees. As a result, everyone is defending and trying to convince others of a different experience with all the expected consequences; from the top to the very bottom fear reigns, divides and conquers a fragmented society without providing any mutual connection.
Will we continue to look the other way when we give the system its power and greedily accept its bureaucratic charity as thanks? Is that the essence of the awakening individual within the whole? To a great extent, mankind has put its conscience up for sale because the mechanics of power demand this. And yes, you have to be sure of yourself to be able to resist this. And that is not something the government encourages; ultimately, we want to be rewarded for it (read: remain dependent!). The bureaucratic reward that we postpone as debt.
I can only hope that the Supreme Court finds the legal courage to interpret the letter of the law7 by intrinsically and justly bringing the sprit of the law8 into play for the benefit of society.
In a mutually competitive society/economy, the spirit of the law can only be implemented with great difficultly and this demands an unbelievable commitment from those involved to be able to develop at all in the direction of a just, dynamic equilibrium. Intentional or not, ‘winners’ appropriate more rights for themselves than ‘losers’; they are not winners for nothing. Subsequently, the winners will protect their achievements (political, economic, bureaucratic and/or legal), thereby chronically bungling and effectively preventing the intentions of the principle of equality.
Competition ultimately leads to economic apartheid, the Berlin Wall that primarily exists in our psyche, that creates mostly top-down communication within a hierarchy that is often unilaterally directed at exercising power (dominating and aiming at profit etc). Because of this, bottom-up communication is seen as a nuisance and a hindrance to exercising power and potential profit. Competition prevents the true integration and participation of individuals, it ultimately creates a servile, indifferent and closed hierarchy instead of a dynamic, open one in which individuals can blossom.
For example, when it really comes down to it, are we capable of questioning our own performance in a hierarchy based on mutual competition? That is the confronting question and challenge for everyone in society, irrespective of their position. A question and challenge of which the Director General of the Tax and Customs Administration does not appear to be aware when relying on the court’s observation that “interest is charged in business transactions relating to capital provisions and that that does not conflict with any national or international rule of law”, without any exception or nuance. Afraid of being sanctioned by superiors locked away in their ivory towers of power? A career-stifled conscience under the guise of that is just how it is; an order is an order and we are not going to question it? Presumably, he never thought of it like that, unaware and ignorant of the position and independence in relation to the system that people are able and allowed to assume. Obedience to the system and the prevailing mores is, after all, more comfortable and less confronting.
In a competing bureaucracy and economy it is about power (having an edge), not about responsibility, which we shift towards the abstract whole. To be clear here, the government has manoeuvred itself into an impossible situation that has cost it most of its natural authority over the course of time. What needs to be central to the judgment/analysis of this appeal is the equilibrium and synthesis between power and responsibility within a society. Nowadays, this balance has almost completely shifted to the blind ambition for power. This is logical in the context of mutual competition, in which, as an individual, you need to survive. Taking responsibility for your own actions towards the masses is often an awkward cost item/confrontation that we try to avoid or sweep under the carpet to secure the revenue stream or protect our own career.
This causes the social challenges to pile up, resulting in an astronomically increasing collective debt9, because nobody bears or shares responsibility for society as a whole. Governments are caught between a rock and a hard place here. It goes without saying that people want to intervene, but in nine out of the ten cases intrinsic regulations will be at the expense of someone’s or something’s influence or revenue stream. So, we will squabble for as long as possible before we intervene. The buzzwords sustainable growth9 will not be able to change this logic when mutual competition and growth remain the most important economic starting points: living at the expense of others. Within such a context, governments have no option but to try and keep all the holes plugged because we cannot question revenue streams in a context where pursuing profit is the key economic activity. In reality, however, we are primarily playing hide-and-seek, constantly putting off the real social challenges. Simply establishing a company with limited liability illustrates the hideous compromise that solves nothing and tries to advance profit, on the one hand, while shirking responsibility, on the other.10
Levying bureaucratic taxes will not change anything structurally, no matter how high or low we make them, because it leaves our basic conditioning, the avoidance of social responsibility by politics and citizens, unaffected: the pursuit of profit and power, reaping more than we have sown, especially at the expense of others. We are piling crisis on top of crisis without having the courage to ask ourselves what the reasons for these crises could be, because then we would be forced to scrutinise our own role within society. While this usually does not have any beneficial effect on our social position as seen from a power or careerist perspective, it is the only way to break through ingrained conditioning to become aware of our own actions (or lack thereof) in society.
We are currently playing an endless game of bureaucratic hide-and-seek in our two-dimensional world of numbers and figures. And when you go looking for it, nobody is ultimately responsible. We are responsible for paper profit or another form of power that someone contributes to an organisation. That is where we derive our social status. As a result, our crisis management pretty much only focuses on saving what is essentially a bureaucratic illusion of power. By doing so, we are chronically shifting our debt (moral and financial) to future generations, because we have no time for these social priorities today. We defer to others for responsibility, to the system or the system’s logic. This only underlines our own incompetences because questioning your own role is deadly within an economy that is based on a power struggle. In fact it is only our belief in bureaucracy’s added value that finds itself in a crisis, and billions in paper debt are pumped into the system to save this bureaucratic illusion/belief from going under. Economic and just?
This is our joint flight from reality, or should I say farce within reality: a paper make-believe world in pursuit of profit. We think we can resolve the social challenges by producing more of that illusory paper to pull ourselves out of the mire.9 The reason for this circular logic lies in the assumption that money in itself is worth money in the form of interest and the meanwhile hundreds of financial derivatives that lead a breakaway bureaucratic life at the expense (read: denial) of society. Politics and humanity have become so dependent on this that we are no longer aware that we have created this ourselves and that we can therefore also change it again. This latter point is the spirit of the law being applied. However, if we no longer believe that we are capable of changing course, the spirit of the law slowly dies in us, at the mercy of a jungle of laws and regulations that genuinely try to save whatever can be saved, but which have no hope of succeeding because we are not questioning our fundamental ‘economic’ conditioning: the pursuit of profit and power, our fearful and instinctive form of (false) security.
It is an illusion to think that this is only happening within the private sector, as our pubic sector is fully dependent on it as well. Someone on social security is in the same boat as a CEO, as is everyone in between: getting more out of it than you have put in without busying yourself with the confronting question of where does this more come from? Just like debt, we shift that question to the future, to our ignorant children. Will they have more courage and a sense of justice than we have now to take up this challenge?
If we do not bite the bullet today, the situation will only become more difficult, bitter and embarrassing considering the self-denying vicious circle in which we currently find ourselves.
It is my opinion that the Supreme Court should review the ruling on the appeal by the Court. The assumption that money is worth money in the form of interest has resulted in a world in which people have become subservient to bureaucratic laws. As a result, humanity has alienated itself from human rights and the possibilities for humankind, life itself, reality, its inner freedom due to servile conditioning, a righteous, dynamic equilibrium, its inner conscience, thus denying freedom of speech, its human equality as a result of a hierarchy based on power, as a result of which it is impossible for a legal system to evolve into a constitutional state, so that society cannot develop towards becoming an open democracy on the basis of individuals evolving towards independence in relation to the larger whole.
(Quite a mouthful, taken from articles from the European Convention on Human Rights)
The Supreme Court has a simple, but difficult choice to make between power and the system and conditioning related to it, on the one hand, and a humanity that, in fits and starts, is becoming conscious of the world it is living in, on the other. Not at the expense of life, but as an integral part of life. By – on a legal level – carefully, but resolutely setting out on a path to resurrect the spirit of the law within the letter of the law. If we convince ourselves of this, it is almost unavoidable that we will experience some sort of anarchy and rebellion, which is necessary to make change possible, to contribute from within society, the origins of democracy, and humankind itself. But anarchy should also be reined in, especially considering the enormous frustration (energy) hidden in society and looking for a way out. This reservoir of frustration should be constructively transformed for (re)structuring society, not for destroying it. This is why it is so important that we should try to change the system from within and not from being forced by the outside with all the attendant bigger social chaos and misery. Separate from this appeal, the old system based on blind and fearful power is dying; you only need to keep your eyes and ears open to witness the bitterness and frustration in our society. A society based on its own initiatives, collaboration, creativity and solidarity is of course already present in society, but also vulnerable and fragile. Creating space little by little with individual freedom and responsibility going hand in hand; this is the new basis and framework on which we need to establish a society over the next 5 to 15 years and provide a context for the future of the Netherlands, Europe and the world and to reassure mankind we need each other for this. In all our diversity, creativity, capacity and courage.
It is not my intention to win or lose this appeal, because that is exactly what I am trying to question and analyse. Competition is at the expense of reason, common sense, an objectification of reality and the perception of truth. No, as far as I am concerned, it is about creating space and putting the issues raised in a legal perspective. We need to summon up the courage to look at it and learn to observe the mechanics and social conditioning resulting from it and find out how this influences our own role in society. We need to become aware that we have difficulty experiencing the spirit of the law within ourselves, which makes us feel cut off, unable to make a constructive contribution to change. The constitution and the European convention seek to provide a framework for this, so that people can feel safer. However, this can only be realised when people give it practical substance. Institutions can guard this, to some degree, but without the practical and contextual input from people, the European Convention on Human Rights is just a piece of paper. To take the first step, the Supreme Court as well as legislators should examine within a legal context the assumption that money is worth money in the form of interest. From my point of view, this assumption has never been formally framed within a legal context, let alone tested. In his Ethics, Aristotle appears to have written that (depending on the translation) ….. money exists not by nature, but by law. Does this (unwritten) rule serve power or mankind, striving for a righteous, dynamic equilibrium, i.e. the spirit of the law?
We have this choice today and it will not come knocking every day, but the strength of the spirit of the law is present in everyone. It is not written in any statute book and can only be realised by people who respect the rules of the law and try to give them content. Handle with care because the spirit of the law is incredibly vulnerable, but must be empowered by gradually creating space by means of a sustainable union of freedom and responsibility, which is and will be the nucleus of consciousness-raising and civilisation.11
The recognition of the Supreme Court that we are dealing with a fundamentally legal and social issue is the first step on the journey towards an essential recovery of trust in the constitutional state, governments, democracy and, therefore, our own role within society.
Should the Supreme Court of the Netherlands still have questions in this difficult, but challenging case, I am certainly at your service, although I may not have a sensible answer to every question.
De Hutte Holding BV
c/o Château de Roquetaillade
1 Before the first case began, I used a lawyer as a sounding board. After he had read it, he called to say, “Very interesting, Mr Hoopman, but you have a less than minus 30 percent chance of this going your way. You will be hidden away in a file and, when it comes down to it, you will simply be ignored”.
2 Funny, in this case I do feel like the plaintiff. So you see, intrinsic contexts can change again.
3 But also journalists, civil servants, scientists, businessmen, educators, everyone including myself lives at the expense of democracy and the constitutional state.
4 I read in the local paper Journal de Millau that 37,000 new laws, decrees and rules appear in France every year. The article added: “to be of service to you as a business owner, Aveyron chamber of commerce has put together a platform of 50 legal experts to support you". Self-fulfilling prophecy? I imagine that it is not quite the same in the more pragmatic Netherlands, but that a similar situation exists.
5 See also appendices I & II: A few questions ….. & The closed door of power…..
6 In the context of power, it is economical, but in the context of public interest it is uneconomical.
7The legal home of society/the constitutional state.
8 The self-developing person inside this home.
9 How many billions are needed to pay off our debts or to make a sustainable economy possible? What we are probably forgetting here is that only man can decide to do business in a more sustainable way, but because we want to be rewarded for this, we will continue to blackmail ourselves and others. The ‘reward’ (read: reality) is the act we will perform or not, which cannot be paid for again, because that would only mean fooling ourselves, dependent and trapped within a bureaucratic matrix that will sort everything out for us. A matrix that, when it comes down to it, can resolve nothing intrinsic, and I really mean nothing. As a result we are denying ourselves the strength (you can also read power for this word) to be able to be fully co-responsible for the world we will live in.
10 The idea of the year by Juriaan Kamp: http://nl.odemagazine.com/doc/0073/Het-idee-van-het-jaar/
11 Recently deceased Dutch politician Hans van Mierlo aptly defines a civilisation as follows: Solicitude for the fate of others.
Appendix I: A few questions make the spirit of the law, the legal economic-democratic debate more profound
Appendix II: The closed door of power…
Appendix III: What will change in a world without interest?
Appendix IV: En route to a free market of, for and by the people
Appendix V: Copy of statement of defence from the Director General of the Tax and Customs Administration dated 4 March 2010