Administrative law procedure as the art of doing right in a fair and just way

Lukas van den Berge in Ars Aequi on the Council of State and the childcare benefits scandal

Tomorrow, the Council of State will publish its 'self-reflection' report on the performance of its Administrative Law Division in the so-called benefits case ('toeslagenaffaire'). In anticipation, Lukas van den Berge, lecturer in legal theory at Utrecht University, writes how administrative case law should no longer be regarded as a collection of legal standards and general legal-dogmatic principles, but as a true ars boni et aequi: an art of the good and the fair.

It was not until October 2019 that the Administrative Law Division decided to start reviewing the Tax Administration's recovery decisions against the principle of proportionality, after having gone along with the Tax Administration's reasoning for a long time and thus providing it with a legal stamp of approval. Now that we are looking for a way out of the crisis that has arisen in administrative law, Van den Berge says, the time has come to explicitly name and choose between divergent views on administrative law.

Hidden assumptions about the legal nature of administrative law play a central role in the present discussions surrounding the benefits affair

The article 'Bestuursrecht na de toeslagenaffaire: hoe nu verder? - Over het rechtskarakter van het bestuursrecht' ['Administrative Law after the Benefits Affair: whereto from here? - On the legal nature of administrative law'] appeared in magazine Ars Aequi of November 202