Judicial Injustice? The “Review Case” before the Dutch Supreme Court in 1942

Abstract

Although the concept of a “wicked legal system” has become well-known, it is not clear how to define such a system or which actors are crucial in bringing it about. This paper discusses from a historical, international, and jurisprudential perspective the Dutch Supreme Court’s 1942 Review Case, in which the Court notoriously grants measures issued by the Nazi occupier the status of Dutch legislation. Although this small tale of the relationship between law, politics, and morality is little known outside the Netherlands, it raises most relevant questions about the constitutional role of a domestic judiciary during foreign occupation and about the ethos of the judiciary beyond the mere obedience of civil servants.