Going Dutch

In historian Russell Shorto’s book, Amsterdam: A History of the World’s Most Liberal City, he discusses the unique circumstances which resulted in Amsterdam contributing so much to modern society.

He often mentions the Dutch concept of gedogen as being an integral aspect of the liberalism that has flourished in that corner of the world. Gedogenis defined as a form of tolerance in which something that is technically illegal is tolerated for the benefit of the community as a whole. In Amsterdam, the principle is demonstrated in the historical Dutch tolerance of religious differences, prostitution and marijuana use. While these practices have often been illegal, Amsterdam has accepted them as phenomena that will exist, whether outlawed or not and thus has sought, at various times, to regulate and control them rather than fight to eradicate them. What was officially illegal was implicitly allowed. At later stages, the practices were, in some cases, officially recognized as legal, within limits. The principle of gedogen is based, according to Shorto, on a Dutch culture that has always striven to meld the rights of the individual with the needs of the community.

Much the same tension between the individual and the community exists in our modern-day society, and community associations and their boards inevitably struggle with these same tensions.

It is the board’s responsibility in many condominium and co-op communities to maintain the common areas and landscaping, yet certain homeowners are always looking to plant flowers, install statues, and otherwise beautify the area adjacent to their homes. Community association rules often prohibit pets, leasing of units, and/or limit the number of occupants, to name a few typical restrictions. Community association residents, just as often, seek to skirt these rules.

The principle of gedogen does not advocate for the abolition of all rules, or of any particular rules. But every society must decide whether the enforcement of any particular rule is worth the struggle.

If the merits of a rule are questionable, is there a way to meld the interests of the community with those of the individual so that both are protected? While the board cannot abdicate from its responsibility to control the common area, can residents be allowed to maintain a small garden or flower bed next to their unit? Instead of banning pets completely, can animals (including service and comfort animals) be tolerated under a set of rules that might allow animal companionship while still protecting the community and the rights of others?

These lines are not easily drawn, and as attorneys, we are certainly not proposing that rules be systematically ignored.

If a board decides to tolerate any behavior that is prohibited, officially changing the rules would usually be advisable. But this step may not always be feasible – either politically, economically, or otherwise. Amending the by-laws may require an unachievable super-majority of support or an equally daunting filing fee. Nonetheless, policies may occasionally need to be revisited and revised – or even ignored – in order to reach a level of tolerance that a community can live with. The goal, after all, is not to create a community full of rules that are followed dictatorially to the letter, but to have a community in which the residents are happy, and their various needs are met, all within reason. Maybe we can learn something from the Dutch.