Should we be happy with a pesky hornet? On the querulant and his unintended, unexpected but desirable functions

Wibo van Rossum

While researching the challenge procedures (publication, ‘Wraking bottom-up’ in 2012 and the current research into the ‘pilot externe wrakingskamer’) I became interested in the querulant. Querulants, in my opinion, challenge a judge more often than other citizens. They are also partly classified by this characteristic. Erhard Blankenburg has previously said that with querulants a shift occurs from a conflict about the case, to a conflict over procedures. The big complaint of the querulant, which is also exactly the reason for his perseverance, is that his complaints are rejected by ‘corrupt officials and judges’ without giving him a ‘decent chance’ to tell his story. The procedure no longer legitimizes, according to Blankenburg with a reference to Niklas Luhmann (Legitimation durch Verfahren, Neuwied 1969). The procedure relieves us at some point “from the obligation of having to argue about the fairness of standards” (Blankenburg 2004:15), while repeated subjectively perceived injustice – perfection does not exist in the daily reality of the law – leads to a pathological complainer.

I am collecting material to be able to systematically research the ‘pathological complainer’, or the querulant in the law. Not the psychological backgrounds of these actors, not the validity of their complaints, not the (dis)functioning of the system and its procedures and also not the adverse effects of the actions by the ‘citizens generally distrustful of the entire system’, but research into the question of his desirability for the system as a whole. How useful is the pesky hornet?

This proposed research looks beyond the primary functions that complaint and challenge procedures are believed to have. “The right of complaint aims to restore the trust of the complainant in the government”, according to the ‘Menu right of complaint’ of the Ministry of the Interior from 2010. The same counts for the other, comparable procedures. They are supposed to provide redress, restore the trust and improve the quality of services, by eliminating wrongdoings and errors in the organization. In addition, it would ‘make officials and administrators more alert and correct in their interaction with citizens, companies and organisations’ (Menukaart klachtrecht, 2010, p. 9).

My assumption is that in practice we will probably observe that where the complainer transforms into a querulant, these functions no longer apply. Although empirically, we do not actually know. We do see that when it concerns querulants, the procedures must preferably be ‘locked’, that ‘barriers’ must be raised, because they would ‘clog’ the system and in any case cost too much money. I would like to see whether the querulant does not also bring about desirable consequences. For this I draw inspiration from an etching by Goya titled ‘El sueño de la raison produce monstruos’ from 1799. In this etching I see that Reason falls in sleep and dreams away, perhaps having a nightmare about the overshot rationality which may yield monsters.[1] But the same monsters also keep Reason alert. In that way our system perhaps produces the querulant, but just as well we might need him to keep us focused.

[1] For this interpretation, I owe my thanks to the article of A.T.M. Schreiner, ‘Historisch materialisme en Habermas’, published in: Agnes Schreiner (ed.) Wegbereiders voor de sociaalwetenschappelijke bestudering van het recht, Reader Sociology of Law UvA 2003