1 December 2021

Roeland Audenaerde

INTRODUCTION TO LAW
Lecture 7: Constitutional and administrative law
 Subjects for today

• Constitution
• Constitutional law
• Constitutional review
• Constitutionalism
• Rule of Law
• Principles of the Rule of Law
• Administrative law (in civil law countries and in common law countries)
• Principles of administrative law

Lecture 7
 Constitution
• In the strict, formal sense of the word: a central, written document that sets
out the basic rules of government
− The UK and a few other countries do not have such a document.
• In a broad, substantive sense: a body of law (written or unwritten) that
attributes power to public authorities, and that regulates fundamental
relations between them, as well as between public authorities and the
individual.
− In that broader sense, the UK does have a constitution.
• Relations between public authorities and the individual are often stated in
a list of human rights (‘bill of rights’).

Lecture 7
 Constitutional law

• Beyond the constitution, constitutional law (Dutch name:

staatsrecht) may also include court decisions, international
treaties and customary rules.
• In Netherlands, rules about relations between ministers
and parliament are all customary.
• In US, the right of judges to declare laws unconstitutional is
based on a court decision.
• This right is called constitutional review or judicial
review

Lecture 7
 Constitutional review

• Constitutional review is typical of common law countries

− Practiced by a Supreme Court, like in US
• In civil law countries, there did not use to be any constitutional review
− Why?
− Because “rule by judges” was seen as contrary to the principle of
people’s sovereignty.
− The Netherlands still holds to this view: Art. 120 of Dutch constitution
forbids judges to annul legislation that is not in accordance with the
constitution.
− However, Dutch judges do have the right to check whether laws
comply with international treaties.
Lecture 7
 Constitutional review (cont.)

• Today, almost all other civil law countries have adopted

constitutional review
• In France and 16 former French colonies, constitutional review
is exercised by a body of politicians, called Constitutional
Council.
− Why politicians?
− Out of distrust of powerful judges!
• In other civil law countries, exercised by a Constitutional Court,
which consists of judges and does constitutional review only
• In many Latin American countries, also by ordinary judges

Lecture 7
 Constitutionalism and Rule of Law

• Constitutionalism: the idea that the exercise of public power is

governed and constrained by a constitution and the rule of law
• Rule of Law: the idea that political actors should obey legal
norms in how they govern and to which extent they govern.
• Includes a set of legal principles (see next sheet)
• Rule of Law is locally known under various other names:
− Rechtsstaat in German- and Dutch-speaking countries
− Etat de Droit in French-speaking countries
− Estado de Derecho in Spanish-speaking countries

Lecture 7
 Principles of the Rule of Law
• Supremacy of the law: There is nothing above the law. Both the
government and the citizens know the law and are ruled by it.
• Legality: Government cannot do anything that lacks a legal basis.
• Certainty (in the civil law world): Government should formulate its
laws and decisions in such a way that citizens know exactly what
to expect or what government requires them to do.
• Equality before the law (also called non-discrimination): Similar
cases should be treated similarly, regardless of someone’s
position or status.

Lecture 7
 Principles of the Rule of Law (cont.)

• Stability: Rules should not change overnight. New rules should not
conflict with any rules previously made.
• Non-retroactivity: Rules should not be applied to a time prior to the
moment that they were made.
• Laws should be publicized, so they are easy to find.
• Law ensures human rights as well as property, contract and procedural
rights.
− Law is not just an instrument in the hands of government, but also
serves to protect citizens against the government.
• Government is accountable under the law. Citizens can challenge it in
court, in the media, in parliament.

Lecture 7
 Principles of the Rule of Law (cont.)

• Court decisions are made by an impartial, neutral judiciary that

is independent from the legislative and executive branch.
• Fairness: Trials should be public and fair.
• Presumption of innocence: everyone is innocent until proven
guilty.
• Nulla poena sine lege: Citizens cannot be punished, unless a
court has decided a law has been broken.
• Proportionality: the punishment should be in balance with the
severity of the crime; the consequences of government action
should be proportional to the importance of that action.

Lecture 7
 Principles of the Rule of Law (cont.)

• Accessibility: Citizens should have access to justice.

• Transparency: Legal procedures should be transparent.
• Government should avoid arbitrariness.
− Government always needs to motivate its decisions by
stating the facts correctly and by providing arguments
that are logical and understandable.

Lecture 7
 Administrative law
• = The body of law that focuses on decisions taken by the government
− Example: a government agency’s decision to award a benefit, withdraw an operating
permit, or enforce another decision
− Concerned with the procedures, rules and regulations of government agencies (tax
service, DUO scholarships service, municipality, etc.)
• At a lower level than constitutional law
− Constitutional law is concerned with the more fundamental laws of state, administrative
law more with the details
• Administrative law encompasses not just central / national government, but also lower (local,
regional) levels of government.
− So administrative law also comprises rules about the relations between the different levels
of government
• Administrative law also contains principles, rules and procedures that regulate intercourse
between government and citizens. Protects citizens.
Lecture 7
 Administrative law: civil vs. common law
• In civil law countries, administrative law is a separate body of law having its own
administrative law code,
• In common law countries, there is no administrative law code
• In common law countries, administrative law largely consists of court decisions by
ordinary tribunals (for examples, see ch. 8 of Harris).
• In civil law countries, administrative matters are adjudicated by a separate body of the
judiciary being specifically devoted to this.
• This separate body can take two shapes:
1) A separate tribunal within the administration
− In France and French-inspired civil law countries, including the Netherlands, this
separate tribunal is called the Council of State (Dutch: Raad van State)
2) A separate system of administrative courts
− Found in Germany and civil law countries inspired by Germany.
Lecture 7
 Principles of administrative law in
civil law countries (French model)

• In France, the Netherlands and many of the other approximately 50

countries that have adopted the French legal system, administrative
jurisprudence has established the following two principles which protect
citizens against the state:
• Prohibition of détournement de pouvoir: A government agency cannot use
its powers for any other purpose than the one for which it has been given
those powers.
• Prohibition of détournement de procedure: When confronted with a choice
between procedures, the government should always follow the procedure
that gives citizens the strongest legal guarantees.

Lecture 7
 Rule of Law: enforced or not?

• Not all governments in the world respect the Rule of Law and
offer citizens much protection against abuse of government
power.
• And governments that generally respect and enforce the
Rule of Law, do not do so all the time consistently.
• Dutch example of government institutions disregarding major
elements of the Rule of Law: childcare benefits scandal
(toeslagenaffaire)

Lecture 7
 Childcare benefits scandal

• Between 2013 and 2019, Dutch tax administration wrongly accused 26,000 parents
of making fraudulent benefit claims
• Algorithms (artificial intelligence software) used by Tax Office singled out dual
nationality households (ethnic minorities) for more stringent checks. (= Equality
before the law?)
• Tax Office followed a rule of thumb: “80% commit fraud, 20% are innocent” (=
Presumption of innocence? Not backed up with quantitative evidence)
• For having made an administrative error, like a missing signature, parents had to
return all the money they had received and were heavily fined. (=
Proportionality?)
• Parents which the Tax Office suspected to be ‘highly culpable’ had to pay all at once
immediately. (= Proportionality? Presumption of innocence?)

Lecture 7
 Consequences for wrongly accused

• Average financial damage of 30,000 per household, in some

cases up to 150,000
• Indebtment
• Bankruptcy
• Poverty
• Unemployment
• Evictions
• Psychological problems
• Divorces
• Children taken out of parental custody
• At least one case of suicide

Lecture 1: International Relations Theories

 Parliamentary inquiry & its consequences

• In 2020, parliamentary interrogation committee concluded

that major institutions had failed in upholding the Rule of
Law: Tax Office, four ministries, Government, public
prosecutor, Council of State, parliament.
• In January 2021, government collectively resigned over the
affair. And so did the leader of the main opposition party.
• Government awards 30,000 euro in compensation to
anyone wrongly accused, unless they qualify for higher
compensation.

Lecture 1: International Relations Theories

 Discussion

• How to prevent this in the future?

• Suggestions?!

Lecture 1: International Relations Theories

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