Quasi-Legislation Compared
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
| Author | F.A.M. Stroink,R.E. Bakker |
| DOI | 10.1177/1023263X9400100303 |
| Subject Matter | Article |
R.E. Bakker'
F.A.M. Stroink "
Quasi-Legislation Compared
§1. Introduction
The legal phenomenon with which the following articles arc concerned is usually
referred to as 'quasi-legislation' or 'policy rules' in English law: rules which are
established by administrative authorities in those cases in which the empowering Act
leaves a wide discretion to the administrative authorities as to the way the Act is to be
applied, but where the empowering Act does not provide for delegation
of
legislative
power to the administrative authority.
These rules originate as 'internal rules' in which the administrative authority sets out
its policy as to how the empowering Act is to be applied. However these rules are often
published, or otherwise made known to the public, as a result
of
which they acquire an
'external effect'. In Dutch legal doctrine, for example, there has been a lot
of
discussion
on the legal effects
of
these rules, especially in connection with those unwritten princi-
ples
of
law which, in French administrative law, arc referred to as 'principes
generaux
du
droit'
(general principles
of
good administration). Once an administrative authority
has established, by way
of
policy rules, which requirements have to be met in order to
obtain a grant
or
permission, then the fulfilment
of
these requirements by the applicant
will entitle
him
or
her
to that grant or permission on the basis
of
the principle
of
justified expectation; the principles
of
legal certainty and equal treatment also play an
important role in the case-law about this subject.
This has led to a development in Dutch law, according to which administrative
authorities are, in principal, obliged to act according to the policy rules which they have
established in the implementation
of
adiscretionary power; it is only in exceptional
cases that they have the right to deviate from the rules which they have created. Some
writers have argued that there is only a marginal difference between the legal nature
of
•Lecturer in Constitutional and Administrative law, University of Limburg (NL). Guest editor for the
following three articles.
••
Professor
of
Constitutional and Administrative law, University of Limburg (NL).
MJ I (1994) 253
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