Epilogue
| Date | 01 September 1994 |
| DOI | 10.1177/1023263X9400100307 |
| Author | R.E. Bakker,F.A.M. Stroink |
| Published date | 01 September 1994 |
| Subject Matter | Article |
R.E. Bakker"
F.A.M. Stroink "
Epilogue
In all modern countries with a developed system
of
administrative law there exists a
phenomenon referred to as quasi-legislation (administrative rules, policy rules, Venval-
tungsvorschriften, directives, circulaires, and so on).
The first questions which immediately arise concern the legal status of such
administrative rules. Are all administrative rules legally binding, or are there differences
in binding effect according to the different
'types'
of administrative rules? Furthermore,
what exactly is the nature of this binding effect: are these rules absolutely binding or
only in a relative way? A preliminary question we have to ask ourselves is why these
rules exist in the first place?
Very often the administrative authorities have wide discretionary powers. In modern
welfare states it is impossible for the legislator to foresee everything. The legislator is
unable to regulate matters in an exhaustive way and often leaves the implementation of
certain statutory powers to the discretion
of
the administrative authorities. One of the
most important problems in modern administrative law is how to check the wide-ranging
discretionary powers granted to public authorities.
In some ways the creation by administrative authorities of administrative rules makes
it easy for judges to control the exercise of discretionary powers. These administrative
rules act as a kind
of
self-restraint on the administrative authorities. In some continental
countries it is even felt that the administration is under a legal obligation to direct its
decision making through thc making of administrative rules. Principles of proper
administration, especially the principles of legal certainty (legitimate expectations, Ver-
trauensschutu and equality (Gleichheitssatz, le principe d'egalite) require acertain
foreseeability of administrative behaviour.
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Lecturer in Constitutionaland Administrative Law, Universityof Limburg (NL).
Professor of Constitutionaland Administrative Law, Universityof Limburg (NL).
MJ I (1994)
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