Take it easy. How underenforcing law can benefit the rule of law

Gijs van Oenen
 

[This piece was originally published in Dutch, in the Dutch national newspaper NRC Handelsblad, on september 20, 2000. It reacted to a piece published on september 18, in which the chairpersons of Dutch political youth organizations jointly denounced the policy of 'gedogen', the policy of deliberate 'lax enforcement' of legal rules which is, or was, prevalent in the Netherlands in areas such as drugs use, euthanasia, abortion, prostitution, and illegal residence.]
 

The joint statement of the chair persons of political youth organizations mostly shows confusion: about political ideals, political reality, and the relation between these two. The main thesis of the writers is something like this: in our compromise-based political culture political values have become much diluted, therefore what little is left of those values should be enforced strictly. This is nonsensical reasoning. Attempts to strictly enforce rules will not re-kindle political passion, and are a bad idea anyway. The confusion of the chairpersons starts when they describe ‘gedoog’policy as a concession to citizens who do not accept a legitimately enacted legal rule. Things become worse when they suggest that gedoogpolicy flows from political cowardice and laziness. The first of these descriptions has nothing to do with ‘gedogen’, while the second completely misunderstands its aim and its nature. Gedoogpolicy should be seen as a valuable reaction to the insight that certain practices in our democratic society are not easily ‘policed’.

Gedogen is often used concerning practices that are morally controversial, and hard to regulate. For instance, abortion, euthanasia, prostitution; but also drugs use and illegal residence. These kind of practices, even more than others, are characterised by a persistent tension between (legal) norm and reality. Age-old mechanisms like (increased) repression or moralism only make things worse here. Any gain they produce is usually purely cosmetic; the undesirable practices have not disappeared, but have merely gone ‘underground’. Abortion and euthanasia disappear into the well-known backrooms; illegal residents are condemned to an invisible existence. But legalisation is not always the best answer either. Sometimes this is practically impossible and undesirable, as for instance with illegal residence. In other cases legalisation doesn’t really solve the problem, as with prostitution. And in still others cases there are good reasons to keep the practice formally within the reach of the criminal law, as with euthanasia.
The Dutch government has understood that, in this type of cases, gedoogpolicy works better than the ‘clarity’ that is demanded, naively, by the political youth organisations. ‘Better’ here means, to start with, that the actual effects are more positive than those that would be reached through repression, or moralisation. Gedoogpolicy is not always very popular, but its results are generally recognized to be positive, even by many of its opponents. But the justification of gedogen lies not only in its practical success. It also has an important moral ‘surplus value’. For it does not create a ‘moral vacuum’, as is often claimed. On the contrary, it appeals to the sense of social responsibility of citizens. Citizens are asked to exercise their capabilities to maintain a certain sort of legal order even in the absence of ‘assistence’ from police or clergy.
Admittedly, this asks a lot from both citizen and government. They have to put up with a less than ideal, somewhat messy Rechtsstaat. Citizens are asked not to take advantage of the fact that direct sanctions on unruly behavior are absent; government in turn is asked not to give in to the temptation of ‘cleansing’, or ‘make a clean sweep’. Indignant accusations of ‘hypocrisy’ or ‘cowardice’, as are now made by the political youth organisations, are the worst of all possible reactions; they contain no positive contribution to the maintenance of a decent Rechtsstaat at all.
 

For more info contact  Gijs van Oenen, Department of Philosophy, Oostmaaslaan 950 (5 minutes from Woudestein campus), tel. 010.4088999 or 020.6860948. Email:vanoenen@fwb.eur.nl.