Formalism versus pragmatism – A comparative legal and empirical analysis of the German and Dutch criminal justice systems with regard to effectiveness and efficiency
| Published date | 01 August 2021 |
| Author | Robin Hofmann |
| DOI | 10.1177/1023263X211005983 |
| Date | 01 August 2021 |
| Subject Matter | Articles |
Article
Formalism versus pragmatism –
A comparative legal
and empirical analysis of the
German and Dutch criminal
justice systems with regard
to effectiveness and efficiency
Robin Hofmann*
Abstract
The German and the Dutch criminal justice systems not only share a common legal history but also
follow the inquisitorial tradition with the prosecution playing a strong role. Despite these com-
monalities, there are a number of remarkable differences between the two jurisdictions, partic-
ularly with a view to procedural law and legal practices. While the German criminal law is known
for being formal and rather doctrinal, the Dutch system is strongly driven by pragmatism and
efficiency. This efficiency has become an important factor for the progressing Europeanization of
criminal law and increasingly influences German criminal procedural law.
This article compares selected aspects of the Dutch and German criminal justice systems. While
previous legal comparative studies of the two neighbouring countries have focused on substantive
criminal law, this paper will mainly deal with procedural criminal law and prosecutorial practices.
The emphasis will be on criminal justice effectiveness and efficiency. Some of the questions
addressed are: what constitutes an efficient criminal justice system? How is efficiency defined and
implemented in legal practice? A variety of indicators for criminal justice efficiency are proposed
and applied to criminal proceedings, prosecutorial practices and the sentencing systems in both
countries.
Keywords
Criminal procedural law, the Netherlands, Germany, criminal justice, comparative law, criminal law
* Robin Hofmann, Maastricht University Faculty of Law, Maastricht, Netherlands
Corresponding author:
Robin Hofmann, Maastricht University, Maastricht, The Netherlands.
E-mail: robin.hofmann@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211005983
maastrichtjournal.sagepub.com
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2021, Vol. 28(4) 452–478
1. Introduction
Over 20 years ago, the German sociologist Erhard Blankenburg published the comparative legal
study ‘Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany’ in the
American Journal of Comparative Law. Blankenburg was a professor of legal sociology at the
University of Amsterdam, and a distinguished expert on the Dutch and German legal systems.
1
In
his study, Blankenburg stressed the fact that Dutch and German legal cultures are comparable, as
well as their political and legal histories.
2
But despite these commonalities, he was also puzzled by
the ‘extremely different patterns’ that both legal cultures display in some regards. To identify these
patterns, he was convinced that a legal comparative analysis should not only take into account the
law, but also nuances in legal writing style, the defining power of journals, faculties and supreme
court jurisdiction, conditions for admission to the bar and the career patterns of judges – all of these
being institutional features that are not only determined by law, but rather by organizations and
traditions.
3
In addition to these nuances, the most significant difference between the Dutch and German
legal systems today is without much doubt the dichotomy between a formalistic and a pragmatic
approach to the application of the law. Already in 1985, Blankenburg and Bruinsma stipulated in
their book on Dutch legal culture: ‘The Dutch tend to be pragmatic. They use law to solve problems
not to create additional ones. If applying the rules would lead to serious disadvantages, the Dutch
try to find ways around them. Rules too strict to be applied are ignored and if that meets with
resistance, they change them.’
4
Indeed, numerous examples exist within the Dutch legal system –
and particularly within its approach to criminal justice – where this pragmatism can be identified.
In Germany, however, the approach is different. In fact, the mere thought of finding ways
around laws, leaving them unapplied or changing them out of convenience, may sound outrageous
to German legal scholars. From their point of view, the Dutch pragmatic approach not only
breaches basic constitutional principles, but also opposes the idea of the Rechtsstaat in general,
which is strongly protected by the German Constitutional Court that looks back on a long history of
restraining and limiting executive power. In Germany, it is sometimes realized with surprise that in
the Netherlands, a constitutional court does not exist to this day.
5
This example demonstrates that
while the Dutch legal system is often governed by efficiency and pragmatism, the German counter-
part tends to be formalistic with a clear tendency to favour systematic and strict doctrinal
solutions.
6
While Blankenburg and Bruinsma’s assessment has not lost much of its validity after more than
two decades, the political and societal circumstances in which the Dutch and German legal systems
are embedded have changed dramatically since. The ‘Europeanization’ of law, a legal political
agenda pushed by the European Union and its institutions, as well as the European Court of Human
1. R. Rogowski, ‘Nachruf auf Erhard Blankenburg (1938–2018)’, 38 Zeitschrift fu¨r Rechtssoziologie (2018), p. 168.
Blankenburg passed away in 2018, a great loss for comparative legal studies not only of Dutch and German law.
2. E. Blankenburg, ‘Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany’, 46 American Journal
of Comparative Law (1998), p. 1.
3. E. Blankenburg, ‘Indikatorenvergleich der Rechtskulturen in der Bundesrepublik und den Niederlanden’, 6 Zeitschrift
fu¨r Rechtssoziologie (1985), p. 255-273.
4. E. Blankenburg and F. Bruinsma, Dutch Legal Culture (2nd edition, Deventer, 1994).
5. E. Blankenburg, 46 American Journal of Comparative Law (1998), p. 3.
6. J. Keiler and D. Roef, ‘Introduction’, in J. Keiler and D. Roef (eds.), Comparative Concepts of Criminal Law (Inter-
sentia, 2016), p. 5.
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