According to the ‘classical liberal constitutional state’, Dutch law has 3 functions. One of these functions is to prevent the government from arbitrarily interfering with the rights and freedoms of citizens. This is part of the principle of legality, and the principle of legality is one of the conditions for the existence of a ‘rule of law’. The elaboration of the requirements of a constitutional state can be found in Dutch (Constitutional) legislation. This is related to the three functions or purpose of the law, namely: guaranteeing legal equality, preventing arbitrary exercise of power by the government, and promoting legal certainty.
Why does the Dutch (Constitution) law exist?
- 1. Guaranteeing legal equality
- General rule
- Principle of legal equality
- 2. Prevention of arbitrary exercise of power by the government
- Principle of legality
- Arbitrary exercise of power
- Abuse of power
- 3. Promoting legal certainty
- Entry into force
- Clear legal description
Functions of Dutch law
The classical liberal view of the rule of law states that the (Constitution) law has 3 important functions, namely:
- guaranteeing legal equality;
- prevention of arbitrary exercise of power;
- promoting legal certainty.
1. Guaranteeing legal equality
One of the functions of the law is to guarantee equality before the law .
General rule
The law guarantees legal equality because it consists of general rules that apply to everyone in a state. A general rule is a rule that applies to everyone.
Principle of legal equality
The principle of legal equality states that the law is equal for everyone, which means that like cases should be treated equally . This implicitly means that unequal cases should be treated according to the degree of inequality. The content and description of the Dutch principle of legal equality are laid down in Article 1 of the Constitution:
,All persons in the Netherlands are treated equally in equal cases. Discrimination on grounds of religion, belief, political opinion, race, gender or on any other grounds is not permitted, (Article 1 of the Constitution).
2. Prevention of arbitrary exercise of power by the government
A second function of the law is that it provides a basis for the government to exercise power to prevent the government from interfering with the rights and freedoms of citizens when this is not legally permitted. The exercise of power is when the government intervenes in the rights and freedoms of citizens. Three important concepts related to this that require further explanation are: the principle of legality , arbitrary exercise of power , and abuse of power .
Principle of legality
The law forms the basis for government intervention, because a legal provision must describe the government’s powers before the government can use these powers. This is called the principle of legality. According to the classical liberal view of the rule of law, the government is strongly bound by the Constitution and other legislation. As a result, enforcement of the principle of legality constitutes one of the four conditions for the existence of a rule of law.
Arbitrary exercise of power
The purpose of the principle of legality is to prevent arbitrary exercise of power by the government. An arbitrary exercise of power or action means that the government’s actions are unpredictable for the citizen, because they do not correspond to what the law prescribes. This makes it unclear to citizens what exactly the government’s powers are and when the government may intervene in the rights and freedoms of citizens and when it cannot.
Abuse of power
If in practice there is arbitrary exercise of power, we speak of ‘ abuse of power’ .
3. Promoting legal certainty
A third function of the law is to promote legal certainty , because by consulting the law, citizens are able to know which rules apply in a state and what the rights and obligations of the citizens and the government are.
Entry into force
Every legal provision must be made generally known before it comes into force.
Clear legal description
In connection with the principle of legal certainty, a law must contain a clear description, so that it is clear to the citizen what its scope or intention is. Citizens can be certain (to a certain extent) that a certain action has a certain consequence .
read more
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- What is the difference between a constitution and a constitution?
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- Ministerial responsibility: meaning & scope