Societal norm formation and its influence on the unwritten duty of care under Article 6:162 section 2 of the Dutch Civil Code
PhD student: Mr C.O. Hoekstra
Duration: 1/4/2020 - 30/4/2024
In order to achieve a concrete interpretation of the unwritten duty of care standard under Article 6:162 section 2 of the Dutch Civil Code, a judge has various instruments at his disposal. Examples of these instruments are formal legislation (which may or may not have a mirroring-effect), disciplinary law, witness statements and social norm-setting. Social norm-setting is the process by which social actors proceed to form regulations in an area that is not regulated by the formal legislator. The legal doctrine also refers to this phenomenon as: soft law, self-regulation and private or alternative regulation. Social standard-setting has legal significance in the interpretation of the unwritten standard of care because it can be seen as a source of social standards. However, this legal meaning is not undisputed. It is often noted in the legal profession that the use of social norm-setting is at odds with the rule-creating monopoly of the legislature and that it therefore lacks of democratic legitimacy. In my doctoral research, I investigate when social norm formation qualifies as a concrete interpretation of the unwritten standard of care and when it does not. I also describe borderline cases. My research consists of a synthesis between a systematic jurisprudence study in which the role of social norm formation in fact-based jurisprudence has been investigated. The findings of this synthesis will be tested in three case studies.