What's in a Handshake? Legal Equality and Legal Consciousness in the Netherlands
| Author | Marc Hertogh |
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| DOI | http://doi.org/10.1177/0964663909104191 |
| Subject Matter | Articles |
LEGAL EQUALITY AND LEGAL
CONSCIOUSNESS IN THE
NETHERLANDS
MARC HERTOGH
University of Groningen, The Netherlands
ABSTRACT
In this article, I examine how ordinary citizens and legal professionals in The Nether-
lands understand non-discrimination law, using the theoretical framework of legal
consciousness. In 2006, the Dutch Equal Treatment Commission ruled that a school
was wrong to suspend a female Muslim teacher who, for religious reasons, refused to
shake hands with men. This ruling provoked a wave of controversy. This article
examines to what extent these critical reactions were indicative of the overall level of
public support for the Dutch Equal Treatment Act. I first provide a brief summary
of Dutch non-discrimination law. Next, following recent critiques in the literature, I
introduce three modifications to the original legal consciousness framework. People’s
understandings of legal equality are then examined using data from a large-scale multi-
method study, which included an online survey, case-studies and in-depth interviews.
Moreover, I provide a brief reconstruction of the handshake case. I argue that the
controversy in this case was not an isolated incident, but an important illustration of
how non-discrimination law matters – or fails to matter – in The Netherlands.
KEY WORDS
equality; freedom of religion; Islam; legal consciousness; non-discrimination law
INTRODUCTION
IN2006, the Dutch Equal Treatment Commission ruled that a school was
wrong to suspend a female Muslim teacher who, for religious reasons,
refused to shake hands with men.1 This ruling immediately provoked a
SOCIAL & LEGAL STUDIES © The Author(s), 2009
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0964 6639, Vol. 18(2), 221–239
DOI: 10.1177/0964663909104191
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SOCIAL & LEGAL STUDIES 18(2)
wave of controversy. The director of the school, the Vader Rijn College in
Utrecht where most students have Turkish or Moroccan backgrounds, called
the ruling ‘outrageous’. The school, he claimed, is committed to teach students
respect and prepare them for the job market. ‘Everybody is welcome at this
school’, according to the director, ‘but religious and political flag-waving
must stay at home’.2 Also, refusing to shake hands with men amounts to
discrimination, he added. This quickly led to political reactions as well. The
Dutch Immigration Minister thought that the Commission’s ruling was ‘too
crazy for words’ and controversially called for the abolition of the Commis-
sion. Although this was rejected by the Prime Minister, he too said he had
‘great difficulty’ accepting the ruling.3 Finally, a poll held by a national news-
paper showed that 64 per cent of the respondents did not agree with the
ruling either. In response to this sharp criticism, the President of the Equal
Treatment Commission emphasized that the position of the Commission is
protected by national and international law. Moreover, he claimed that the
critical reactions to this particular ruling were not indicative of the overall
level of public support for the Commission (Castermans, 2006).
This case raises several important questions. Why did this ruling cause so
much controversy? Was this case really an exception? And what does this
tell us about the social significance of legal equality and non-discrimination
law in The Netherlands? In addressing these issues, this study focuses on how
actors think about the Dutch Equal Treatment Act and the rulings of the
Equal Treatment Commission. Most previous studies were aimed at analysing
the effectiveness of non-discrimination law (cf. Banakar, 1998; Gelb, 2000).
An earlier Dutch study found, for instance, that due to the internal structure
of the rules, poor communication, and a passive attitude of the enforcement
agencies, this legislation had only limited effects (Havinga, 2002). By contrast,
this article uses a ‘constitutive’ approach. Our aim is to move ‘away from
tracking the causal and instrumental relationship between law and society
toward tracing the presence of law in society’ (Ewick and Silbey, 1998: 35,
emphasis added). Rather than focusing on the effectiveness of law, I will use
the theoretical framework of legal consciousness to focus on people’s under-
standings of non-discrimination law (cf. Fleury-Steiner and Nielsen, 2006).
Thus, rather than asking how much does law matter, this article asks, how
does the Equal Treatment Act matter in The Netherlands?
In the first section of this article, I provide a brief summary of Dutch non-
discrimination law. Second, I discuss the theoretical perspective of legal
consciousness. In recent years, this perspective has grown increasingly popu-
lar, but there have also been a growing number of critiques of legal conscious-
ness as a framework for socio-legal research. In this section, the framework
of legal consciousness will be modified in the light of this criticism. The third
section of this article discusses the methodology of this study, which included
an online survey, case-studies and in-depth interviews. I will then focus on
the core of this article: the application of the (revised) legal consciousness
framework to the ways in which the general public and legal professionals in
The Netherlands understand non-discrimination law. In the fourth section,
HERTOGH: LEGAL EQUALITY AND CONSCIOUSNESS
223
I will first examine what people know about the legal framework of non-
discrimination. Then, in the fifth and sixth section, I will look both at how
and what people experience as legal equality. Based on a reconstruction of
the Utrecht case, I will differentiate between a ‘narrow’ and a ‘broad’ concep-
tion of legal equality. In the conclusion, I argue that the controversy in this
case was not an isolated incident but an important illustration of how non-
discrimination law matters – or fails to matter – in The Netherlands.
NON-DISCRIMINATION LAW IN THE NETHERLANDS
In 1983, the principle of equal treatment and non-discrimination was intro-
duced in Section 1 of the Dutch Constitution. This constitutional provision,
however, works primarily between individual citizens and the State. In order
to apply the equal treatment and non-discrimination norm to relationships
between citizens, the Equal Treatment Act (hereafter the ETA) came into
force in 1994.
EQUAL TREATMENT ACT
According to the ETA, unequal treatment is explicitly prohibited on grounds
of gender, marital status, race, nationality, religion, belief, political opinion
and hetero- or homosexual preference. It is forbidden to treat people differ-
ently on these grounds of discrimination in two main fields: in working
relationships and in offering goods and services. The ETA forbids direct as
well as indirect discrimination. Direct discrimination is unequal treatment
based explicitly on one of the grounds listed earlier. Indirect discrimination
occurs when a certain (often apparently neutral) requirement, rule or practice
does not explicitly refer to one of the non-discrimination grounds, but in
effect has a disproportionately negative impact on a group that is protected
by the non-discrimination laws.
EQUAL TREATMENT COMMISSION
The ETA provides for the establishment of an Equal Treatment Commis-
sion (hereafter the Commission). The Commission is an independent semi-
judiciary body that investigates complaints about discrimination (Goldschmidt
and Goncalves Ho Kang You, 1997). Their rulings are not legally enforceable
and the Commission cannot force the party who is found guilty of discrimin-
ation to comply with their ruling.
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SOCIAL & LEGAL STUDIES 18(2)
THE FRAMEWORK OF LEGAL CONSCIOUSNESS: CRITIQUES AND
MODIFICATIONS
To analyse people’s understandings of non-discrimination law, this article uses
the theoretical framework of legal consciousness. Legal consciousness research
seeks to understand ‘people’s routine experiences and perceptions of law in
everyday life’ (Cowan, 2004: 929). Scholars of legal consciousness use the
analysis of, for instance, the welfare offices (Sarat, 1990), jury rooms (Fleury-
Steiner, 2002), and public places (Nielsen, 2000) to study how law is acted
upon and understood by ordinary citizens. In these studies, ‘consciousness
is not merely a state of mind. Legal consciousness is produced and revealed
in what people do as well as what they say’ (Ewick and Silbey, 1998: 46).
In recent years this approach has become increasingly popular, both in the
United States and in Europe. However, as empirical studies of legal conscious-
ness have developed so have the number of critiques of legal consciousness
as a theoretical and methodological framework for socio-legal research (e.g.
Levine and Mellema, 2001; Garcia-Villegas, 2003). In the 1980s legal con-
sciousness became the central focus for some scholars, who shared a common
interest in an alternative approach to law and society research. Their original
research agenda had three components: (a) more emphasis on the role of law
in society; (b) more emphasis on the role of ordinary citizens; and (c) a shift
in focus from measurable behavior to meanings and interpretations (Silbey,
2005). Critics argue, however, that more than two decades later, all three
components need to be updated. In this section, the original legal conscious-
ness framework will be modified in the light on this criticism.
MORE THAN OFFICIAL LAW
Rather than studying law as if it were a separate realm from society, legal
consciousness research focused on the way in which law matters in everyday
life, using concepts like consciousness,...
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