Staying out of the Court? Reservations about a supposed practice and a popular policy
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The phrase ‘staying out of court’ raises two questions. Firstly, is there really a tendency to stay out of court? Secondly, if this tendency exists, is it a welcome development or a regrettable one? The first question is difficult to answer, as there are opposing inclinations. And since the judicial domain is a multilayered phenomenon, there is no way of telling whether the tendency is pervasive. To gain a clearer overview of the judicial domain, it seems advisable to switch from a quantitative to a qualitative perspective, which conceptualises adjudication as part of the democratic decision-making process. We are then in the position to distinguish different kinds of increase or decline in broad or deep judgments and are also able to identify the drawbacks of a practice or a policy of staying out of court: for example, the loss of common ownership, accessibility, visibility and plurality. These findings set limits to a government policy of staying out of court, both in terms of breadth in large numbers of cases as well as in depth for exemplary and complex cases.