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08/12/2011

The difference between legal system and constitutional state.

 La version Français

                                                                       Supreme Court of the Netherlands

Ms XXXXX
PO Box 20303
2500 EH The Hague

 

13 September 2006

 

Copy to: Prime Minister Balkenende, Winterswijk Tax and Customs Administration and www.solution-simple.com

                                                                      
Re:The difference between legal system and constitutional state, and a concrete question to you

Dear Ms XXXXX,

Thank you for your explanation in your letter of 17 August 2006, in which you clarify that our legal system has to abide by the rules set down in the law. This seems very logical and right to me. You also state that an investigation is possible, provided that this is brought before the Supreme Court in the manner stipulated by law. This also seems logical in order to give the legal system a framework in which justice can be administered carefully and fairly. Nonetheless, I want to make a comment here. Your observation is entirely true if the legal system is in line with the way the constitutional state operates; that is, the legal system (theoretically speaking) operates completely synchronously with the constitutional state itself. That this is not the case today, either practically or theoretically speaking, is clearly evident from our politico-economic system in which the economic right of the strongest is institutionalised/protected, and which, therefore, disregards the most fundamental democratic principles which should be the basis of a well-functioning legal system.

But how can a constitutional state serve (the general mutually binding interests), if mutual competition is a key ‘common’ principle? The institutionalised representatives of the constitutional state, i.e. the judiciary, government and parliament, guarantee their own indispensability by creating conditions whereby society only becomes more dependent on these institutions.

The very nature of competition constantly requires the administration of justice, an arbitrator who intervenes and administers justice. From a marketing perspective, this is a winning recipe; having people compete because they will continuously have to knock on the door of those various bodies seeking justice, or sooner or later, they will hang their head in despair at this constant and chronic recurring injustice. 

A case of the goose that lays the golden eggs for the people working within this system. But what happens to the people who find themselves outside the system? Competition forces us to protect ourselves properly, which takes up a lot of our time and energy. There’s nothing really wrong with that, but shouldn’t the constitutional state (the government, the house of representatives, the judiciary, the business community and citizens) at least take a look at whether this is efficient and in the interests of an open society, one that is as free as possible? And the most important question in all of this is whether it’s fair on all those participating in society. Sooner or later, we have to ask ourselves if honest competition is actually at all possible. How and where do you set believable limits on what is possible, permitted and still just? A society where competition is a key principle logically creates the right of the strongest. Those who ‘earn’ the most can recruit the best staff, pay the best lawyers, etc., but does it actually create people who take their own responsibility within and for society as a whole? Fortunately, there are of course plenty of people like this, but unfortunately, they are more the exception than the rule within a competitive society. With competition, the first priority is having your own affairs in order. The consequences for society as a whole in the short and long run are secondary and, in day-to-day practice, they are often a loss-making priority. This brings me to the important conclusion that competition creates dependence instead of healthy independence and fair play in society as a whole: the constitutional state. By taking competition as a starting point, the legal system has created (unintentionally, I assume) an indisputably huge market share,on which practically all of society has become dependent. When viewed from the perspective of psychological laws that create mutual competition, this is completely understandable. But is this just and efficient from an economic point of view? Does this create the right principles for a free and open society and for individuals who stand on their own two feet?

Collaboration, on the other hand, places the responsibility on society, on the independently operating individual. Institutions intervene when the conditions for collaboration are undermined by the individual or groups of participants. This requires an entirely different attitude from parents, government, parliament and the judiciary. Democracy will then come to rest where it naturally belongs: in society itself, with the individual, instead of with the institutions that unconsciously try to protect their own market at the expense of democracy and the constitutional state. Because in a competitive society we can only protect our own achievements against our competitive fellow man. Over the years, this has resulted in institutions, governments, business and individuals only safeguarding their own system, achievements and mechanism, which, of course, has happened at the expense of the general interest: the constitutional state. In a competitive society, people always point the finger at others; nobody is responsible anymore for individual actions or joint ones. For instance, in your first letter of 12 July 2006 you suggest that I should vent my opinions in the political arena; a political world that is internally divided right down to its core and, because of its individual political fight for survival, has long since lost sight of social interests. This is all logical when you consider mutual competition, but it’s disastrous for the constitutional state striving for unity


Ms XXXXXX, we find ourselves at a juncture where we are individuals, but also a part of society as a whole. As both, we can contribute to the recovery of the constitutional state. Every individual will have to do that based on their own responsibility and the position that they have in society. With this letter, I’m trying to show that the balance in which the Supreme Court finds itself has been tipped in favour of ‘guarding the legal system rather than the constitutional state’. As a lawyer, you will understand that both are essential ingredients for the healthy functioning of an open economy, a fair society and independent, responsible individuals. Competition forces individuals, businesses and institutions to safeguard their own products, tricks or systems without being able or willing to consider what the long-term consequences of that are. Sooner or later, competition completely imprisons the economy, democracy and the constitutional state because we have almost completely lost sight of the social (economic) interest. In a competitive society, nobody is responsible for this anymore. Promoting collaboration, participation and sharing makes every individual accountable for their own actions, to themselves but also to the constitutional state (society) as a whole. Collaboration forces us to look at our own choices and to decide whether we agree with them. Collaboration demands honesty in the way we think and do business. Competition, on the other hand, is a breeding ground for hypocrisy, indifference, blackmail, intolerance and corruption; something that creates a lot of work for the legal system, but which ties the hands of the constitutional state, leaving it to look on, powerless.

Ms XXXXX, I am no lawyer, which is why I’m asking you if there is a place within our constitutional state and legal system where I can have the injustice that I have observed heard and adjudicated.

In summary, the complaint is that today, because of mutual competition, there is no constitutional state within which individuals, businesses and institutions bear individual and joint responsibility for society as a whole, the constitutional state itself. In the end, competition leads to:

  1. Intolerance and indifference to society as a whole;

  2. An exponentially increasing number of cackling interest groups fed by mutual distrust;

  3. Governments assuming Soviet-like proportions, because of social moral bankruptcy.

  4. People, government and the business community are subordinated to the financial world;

  5. Democracy today means voting, every now and again, for something that does not represent any form of power, irrespective of what political colour it claims to represent;

  6. A politico-economic system that is creating its own Siberia by chronically excluding large groups of people.

  7. A government, judiciary, parliament, business community, teachers and father and mothers, who, every day, lose more and more of their natural authority, because we have become too caught up in our own individual survival instincts, making it impossible for us to be able to even see the common interest, let alone serve it.

  8. A suffocating/bureaucratised society resulting from the belief in profit and growth.

  9. A chronically sick business climate completely dependent on reward.

  10. A completely dependent society searching for reward instead of dealing with our individual and joint challenges in a mature fashion.

  11. Clouded communication which thwarts honesty between people.

  12. A society where justice has been degraded to a troublesome sub-priority, while it should be the most important task of everyone participating in the constitutional state: government, parliament, judiciary, citizens and the business community.

  13. The increasing scarcity of fundamental human needs such as clean water and drinking water and efficient human communication.

If you and I are competitors, then it is completely in your interest to do nothing with this letter; the pre-programmed legal system will efficiently perform its duty. I doubt whether the constitutional state benefits from this. It benefits from people who dare to take their decisions and their responsibility independently, seeking justice for everyone in society. An experiment and necessity that we call democracy and which aspires to freedom and responsibility for every man. Freedom (and responsibility) is a choice; hopefully we will show the courage to take this decision individually and together.

Can you and do you want to help me to find the right way into our legal system?

Kind regards

Peter Hoopman

De Hutte Holding BV
EURL Petit
Château Roquetaillade – Aveyron

12490 MONTJAUX
France

Enclosures:

- A few questions to broaden the economic-democratic debate
- A simple and democratising solution

 

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