Table Of ContentLaw and Philosophy Library 124
Cees Maris
Tolerance:
Experiments
with Freedom
in the
Netherlands
Law and Philosophy Library
Volume 124
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Cees Maris
Tolerance:
Experiments with Freedom
in the Netherlands
Cees Maris
Department of General Jurisprudence
University of Amsterdam, Faculty of Law
Amsterdam, The Netherlands
ISSN 1572-4395 ISSN 2215-0315 (electronic)
Law and Philosophy Library
ISBN 978-3-319-89344-0 ISBN 978-3-319-89346-4 (eBook)
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Preface
During the Cultural Revolution of the 1960s, the Netherlands took the lead in a
global emancipation process towards a society based on equal freedom. It was the
first country to legalize euthanasia, soft drugs and gay marriage. Sex and family law
were brought into line with the liberal principle that you are free to live as you
please, as long as you do not harm others. Generally, tolerance became the hallmark
of the Dutch way of life.
I was closely involved with those emancipatory events as a participating
observer and followed them with philosophical reflections in the course of my
academic career as a professor of legal philosophy at the University of Amsterdam.1
Indeed, swinging Amsterdam was the magical centre of an exuberant youth cul-
ture, famous for its playful and provocative experiments with art, music, love and
stimulants.
This book Tolerance: Experiments with Freedom in the Netherlands provides a
systematic collection of these reflections from the perspective of political liberal-
ism. It discusses contemporary policies concerning sexual morality, free speech,
drugs, euthanasia, marginalized minorities, the heritage of colonial slavery, the
problematic integration of immigrant minorities, the increasing intolerance of the
native Dutch towards newcomers, and state neutrality.
Tolerance: Experiments with Freedom in The Netherlands can be read as a
sequel to Law, Order and Freedom, a historiography of Western political and legal
philosophy (Maris and Jacobs 2011). That history ends with contemporary liberal
philosophy; this study applies the liberal principles to a range of current practical
issues.
I wrote this book in the library of my Amsterdam canal house on the Leliegracht,
just around the corner from the house on the Keizersgracht where the English phi-
losopher John Locke wrote his influential A Letter Concerning Toleration, while
1 I also conveyed my views by way of philosophical theatre, notably through my oratorio Horror
Vacui (in collaboration with the composer José-Luis Greco) and plays The Dance of Zarathustra
and We Want Our Freedom!
v
vi Preface
hiding there as a political refugee in the 1680s.2 Locke’s plea for tolerance and
freedom echoes the publications of like-minded Dutch intellectuals, notably
Coornhert.
In his 1582 A Conclave on the Freedom of Conscience, Coornhert, adviser to the
leader of the Dutch revolt, William of Orange, advocated freedom of religion and
the separation of church and state. The state should not try to enforce the alleged
true faith: ‘Is not the mobilization of Truth a more effective […] manner to counter-
act false, deviant doctrines than invoking the power of the magistrate?’ (Coornhert
2008, p. 159). The search for truth, continued Coornhert, requires open debate and
freedom of the press.
Spinoza, living in Amsterdam a few decades before Locke, was even more radi-
cal. He expanded freedom of religion to a general freedom to philosophize: ‘In a
free state everyone is allowed to think what they wish and to say what they think’
(Spinoza 2007, p. 239). Indeed, one can rightly speak of ‘the golden age of the
seventeenth-century Low Countries, the birthplace of the modern philosophy of tol-
eration’ (Gorham 2011, p. 104).
Actually, political practice at that time was far from perfectly liberal, nor was it
based on a liberal constitution. Dutch tolerance had a primarily pragmatic character.
As the Dutch historian Huizinga notes:
Freedom was greater here than elsewhere and so, more through circumstance than from
conviction, was the spirit of tolerance (Huizinga 1968, p. 109).
Immediately after becoming an independent nation (via a revolution that started
in 1568), the Dutch Republic developed into the most modern and free country of
its time. The progressive faction of the ruling elite continued the Erasmian tradition
of toleration. Generally, authorities dealt in an easy-going way with the religious
diversity that had incited so many bloody conflicts all over Europe. On the other
hand, the Dutch did not find it inconsistent to combine their own fight for freedom
against Spanish oppression in the Netherlands with colonial conquest and slavery in
Africa, Asia and the Americas.
In contrast to the centralized European monarchies with their top-down rule, in
the federative Dutch Republic political decisions were based on deliberation and
compromise. This deliberative way of governance continued the medieval Dutch
‘polder model’: the large-scale planned reclamation in eleventh-century Holland
had been carried out by self-organized groups of free farmers, coordinated by the
Count of Holland. Current Dutch politics is still based on the very same model: ‘all
of this took place within a societal context that throughout this long period dis-
played three key features: high levels of participation in civic institutions and
2 Locke was one of the many freethinkers who preferred Dutch tolerance to the authoritarian
regimes of their native countries. In 1634, the French philosopher René Descartes had been living
at the Western Market, next to the Keizersgracht; the façade of that house now bears his statement:
In what other country could one find such complete freedom? Pierre Bayle, too, took refuge in the
Low Countries. Praising its freedom of the press (Bayle 1684, Préface), he became a famous advo-
cate of toleration.
Preface vii
organizations, a high degree of civic influence and low levels of social inequality’
(Prak et al. 2014, p. 126).
Dutch tolerance of the 1960s revitalized the tolerant tradition for which the
Netherlands had been celebrated during its seventeenth-century Golden Age. Once
again, the Dutch elites sought pragmatic solutions for the dynamics of a plural soci-
ety. As the historian James Kennedy observes: ‘Both in the seventeenth century and
in the sixties of this century, the Dutch authorities came to the same conclusion: in
a pluralistic and fast changing society, giving free rein was the best option’ (Kennedy
1995b, p. 209).
As a Baby Boomer born just after the Second World War, I experienced the nov-
elties of the 1960s as liberation from the stuffy suppressive traditions of the authori-
tarian class society in which I had been raised. No longer was I forced to put on a
blue suit so as to attend waltz and foxtrot lessons in the exclusive upper class dance
school that my parents had selected for me. I preferred to visit rock concerts in
Paradiso, Amsterdam’s psychedelic dance temple, with my longhaired friends.
Homo ludens was the new ideal. Many of my contemporaries experimented with
love and drugs, generally in a controlled manner—although some ended up on the
lunatic fringe. It has not hindered most of them from building families and careers.
This way of life was facilitated by the legalization of activities that had been
strictly prohibited under the conservative, Christian-inspired rule of law that domi-
nated the first half of the twentieth century. Consumption and small-scale sale of the
‘soft drugs’, marijuana and hashish, were now legally permitted. General availabil-
ity of contraceptives opened the way to free and safe sex. If, nevertheless, the female
partner got pregnant she could opt for a legalized abortion. You were free to choose
for a humane end to your life through euthanasia when you were suffering unbear-
ably from an incurable disease.
Many of these tolerant legal practices are not fully liberal. For euthanasia, an
autonomous declaration of will is a necessary yet not sufficient condition: the physi-
cian’s compassion is decisive here—a paternalistic and therefore illiberal require-
ment. Even if it could be shown that the regulated use of ‘hard’ drugs was less
harmful than a legal ban, legalization would stand little chance in the Netherlands—
which violates the liberal harm principle.
Nonetheless, its relative freedom makes the Netherlands an ideal testing ground
for liberal theory. Indeed, this study views Dutch society as a social laboratory in
which liberal political philosophy can be put to the test.
Permissive Dutch drug policy sharply contrasts with the moralistic American
‘War on Drugs’. The Netherlands and the United States can be seen as unique social
laboratories for a comparative analysis of the practical implications of a liberal as
opposed to a moralistic drug policy. According to the World Drug Report 2011 of
the United Nation Office on Drugs and Crime, among the US population aged
15–64, the annual prevalence of cannabis use in 2009 was 13.7%; the annual cocaine
use was 2.4%. In the same year among the Dutch aged 15–64, the annual cannabis
use was 7%; the annual cocaine use was 1.2% (van Rooy et al. 2011, p. 13). It would
seem that a tolerant policy goes hand in hand with relatively low drug use.
viii Preface
Dutch sex and family law are designed in accordance with the liberal harm prin-
ciple. According to the Sex under 25 reports of 2005, 2012 and 2017, a large major-
ity of Dutch youth has sex of high quality on the basis of reciprocity. The use of
force is diminishing. In 2012, 4% of the boys and 17% of the girls reported that they
had been forced at least once to participate in sexual activities; in 2017, these figures
were 2% and 11%, respectively—which still is a cause for concern. Most Dutch
youngsters are searching for what the sociologist Wouters (2004) has called a ‘lust
balance’, a balance between a desire for sex and a longing for intimacy.
Dutch tolerance regarding euthanasia, too, is a widely appreciated practice.
According to the 2017 Third Evaluation of the Euthanasia Law:
In the year 2016, the euthanasia law was supported by 88% of the Dutch public, and 76%
could imagine themselves having at some point to make use of this law. […] Of the Dutch
citizens who support the existence of a euthanasia law, 64% considered the most important
argument in favour thereof to be that in some situations euthanasia is the only solution to
unbearable suffering; 34% found the most important argument to be that people should be
able to decide for themselves on how their lives should end (Onwuteaka-Philipsen et al.
2017, p. 82).
In countries where euthanasia is banned for moralistic reasons, notably the sanc-
tity of life, physicians nonetheless practise mercy killing on a large scale. In contrast
to the Netherlands, their activities are not tested against statutory requirements of
due care. All in all, Dutch legal culture appears to be more free and less harmful in
comparison with moralistic legal systems elsewhere.
This study not only evaluates liberal theory by examining tolerance in action as
evidenced by the permissive practices of the Netherlands; it also evaluates the
imperfections of these practices in the light of liberal theory. For instance, what are
the shortcomings of Dutch euthanasia law from the perspective of the liberal ideal
of individual autonomy? What would the liberal remedy imply? Similarly: What
would be a coherent drugs policy in the light of the liberal harm principle? The
implicit hope is that future practice will follow theory.
This experiential approach assumes that mankind can learn from historical and
current experience, a learning process in which theory and practice inform each
other mutually. For instance, in the sixteenth century tolerance was considered a
threat to social cohesion. According to the received view at that time, social order
would require a shared worldview based on common values. Consequently, free-
dom of religion, speech, and the press were ruled out. Yet, the new Dutch Republic
experimented with toleration in response to urgent problems of religious diversity.
Over time, let’s agree to disagree proved to be the best way to combine freedom
with economic prosperity in a well-ordered society. This insight was supported by
theoretical pleas for principled tolerance and liberties—see Coornhert. Nowadays,
liberal freedom rights are enshrined in all Western constitutions.
Similarly, the permissive experiments that emerged from the Cultural Revolution
in the 1960s demonstrate that liberal regulations often have a more beneficial effect
than an absolute ban. After all, in a tolerant and open society individuals can learn
to control themselves in a responsible way. Articulating such findings, liberal theory
can, in turn, stimulate improvement in political and legal practice.
Preface ix
The development into a tolerant and free way of life is not an irreversible pro-
cess. After the turn of the millennium, the Netherlands grew more conservative.
Intolerance increased, partly under the influence of the influx of immigrants from
illiberal parts of the world, and partly because many indigenous Dutch responded
intolerantly to the arrival of the newcomers. For many, the murder of the film direc-
tor Theo van Gogh by a Muslim fundamentalist in 2004 was a turning point. The
historian Israel (2004) noted:
The feeling in the Netherlands at the moment is seemingly one of a deep cultural crisis
revolving around the question of toleration which until recently was a basic, unquestioned,
taken for granted, pillar of the Dutch sense of identity.
As the Dutch-American author Ian Buruma observed in Murder in Amsterdam:
‘the world had indeed changed since 9/11, and that world had caught up with
Amsterdam’ (Buruma 2006, p. 17).
Now, former Dutch governments were blamed for conducting multicultural poli-
cies, which would have encouraged the organization of immigrant communities on
the basis of their illiberal cultural, ethnic and religious identities. Xenophobic popu-
list politicians emerged, specializing in Islam bashing in order to exploit the discon-
tent of native citizens. Their appearance gives rise to the paradox of tolerance:
should intolerance be tolerated?
The Party for Freedom, led by Geert Wilders, radicalized Huntington’s predic-
tion of a global clash between Western and Muslim civilizations: Muslims were
plotting to transform the Netherlands into ‘Netherarabia’, with the help of Muslim
immigrants and the cosmopolitan Dutch elite. Wilders was prosecuted for expres-
sions such as ‘Mohammed is a paedophile’. Initially, he was acquitted because of
the importance of free political speech, but in 2016 he was sentenced for inciting
discrimination and insulting an ethnic group. In the 2017 national elections, with
13% of the votes Wilders’ party became the second largest Dutch political party.
Some have announced the end of Dutch tolerance. This is grossly exaggerated.
In the Netherlands, populists are far from having a majority. Moreover, they do not
question the democratic constitution, nor do they call for violence. They endorse the
values of the Enlightenment, including gay marriage, even if only to impeach illib-
eral Muslims. For the time being, there is little risk that the acquired liberties in the
areas of sexuality, recreational drugs consumption and euthanasia, or gender equal-
ity, will be reversed. But the long-term prospect is uncertain—all the more reason to
continue the fight for freedom.
These topics are extensively discussed in the chapters of Tolerance: Experiments
with Freedom in the Netherlands. Chapter 3 reflects on the liberalization of Dutch
sex laws and sexual ethics, with a special focus on pornography. Chapter 4 discusses
incest as a special case of sexual morality: paternalism is allowed for the protection
of dependent minors. Chapter 5 analyses Dutch drugs policy, testing it against the
liberal harm principle. Chapter 6 discusses the euthanasia law in the light of indi-
vidual autonomy. Chapter 7 studies liberal social justice in relation to marginalized
groups, notably human ‘freaks’. Chapter 8 associates the history of colonial slavery
with the idea of public reason. Chapter 9 examines the problematic integration of
