Fundamental rights lost in translation?

Fundamental rights are everywhere. But, as becomes particularly clear during the pandemic, when balanced again other rights and interests, they often do not prevail. In this paper, I first discuss how this may lead to a ‘mismatch’ between expectations towards rights and the way they work. Rights may seem to offer less protection than their reputation implies, or merely seem concerned with protecting ‘the other’. Secondly, I deal with the question of how this gap came about and in doing so point at several widely adopted modes of interpretation and application, such as evolutive interpretation in combination with proportionality review. Finally, it is argued that omnipresent but relative rights may nevertheless contribute to the legitimacy of the modern constitutional and administrative State and the decisions it takes if at least the mismatch between expectations and perceived outcomes is taken seriously.

The performance of internally and externally orientated administrative law

A striking point of divergence in administrative-system design is whether it is highly systematized and conceptual in nature (e.g., Dutch administrative law, with one of the most comprehensive codifications worldwide) or whether it rejects this kind of ‘one-size-fits-all’ approach in the name of individual fairness (e.g., South Africa, with a justiciable constitutional right to administrative justice). How do these two blueprints, at opposing ends of the spectrum, influence the overall performance of administrative law? We argue that the fundamental divergence in the critical debate pertaining to the role, value, and effectiveness of administrative law is inseparably intertwined with what is essentially an excessive focus on the particular objectives pursued by these respective models. We argue that within national administrative-law systems an enhanced understanding of system design is crucial for the identification, and achievement, of their overall performance, and hence, legitimacy

Governance through EU guidance: towards a ‘principled approach’

In the European Union, governance through guidance is on the rise. With the issuing of non-legally binding guidance documents, the European Commission assists Member States in the implementation of EU law.
The question of how the legitimacy and effectiveness of EU informal governance should be guaranteed is highly topical. In the literature, there is an increased call for proceduralization of the issuing and use of Commission guidance. From a formal legal perspective, this can be applauded, yet it can also be detrimental to the features of informality that make EU guidance a flexible and effective governance tool.
Seeking to find the right balance between informality and legality, this contribution explores how the legitimacy of governance through guidance can be best guaranteed. It will argue that a more principled approach is needed in order to enhance the legitimacy ánd effectiveness of governance through EU guidance.

Artificial intelligence as an aid to constitutional checks on the administrative state

This contribution asks whether and how artificial intelligence (AI) could be used to improve constitutional checks on the actions of administrative actors? Failures to keep tabs on the contemporary administrative state are often linked to informational problems such as lack of transparency, information ‘overkill’ and ‘not knowing what one does not know’. One way in which AI could aid human efforts to control administrative actors is to let algorithms work alongside human-led administrative decision-making to reveal potential biases in the latter (micro context). Another is using AI-fed monitoring systems to signal certain trends within administrative agencies or in the field they administer (macro context). The contribution investigates the potential of AI applications to fulfill these legitimacy-enhancing roles in constitutional oversight of the administrative state, paying attention to the normative frameworks that could ensure that constitutional actors meaningfully stay in charge.

Digitization as hyper globalization 2.0: how the rise of Big Tech threatens to further undermine the sovereignty of democratic legislatures – and what we can do about it

Digitization intensifies ‘hyper globalization': economic globalization, without the development of sufficient or sufficiently effective legal and political institutions to steer economic globalization in the right direction. With digitization (or ‘hyper globalization 2.0’) ever more public power will concentrate in the hands of private technology firms, which will, in turn, further undermine the sovereignty of democratically legitimated legislators, whether national or continental. This analysis allows us to better understand the origins and nature of contemporary Big Tech-feudalism and to see more clearly how our constitutions can be adapted in order to remain capable of anchoring fundamental values.

The administrative state redeemed? Vermeule’s plea for more substantive constitutionalism as a recipe for a successful public law of the future

From its inception, the administrative state’s legitimacy has been debated in the U.S. In their book Law and Leviathan. Redeeming the Administrative State (2020), Cass R. Sunstein and Adrian Vermeule attempted to reply to the critics. This rejoinder boils down to the fact that the administrative state is broadly consistent with the principles of the rule of law.
In his Atlantic article, Vermeule went a step further by arguing that public law’s success is not so much at stake because of the administrative state as because of a procedural, technocratic ‘legal liberalism.’ In its place, Vermeule advocates an ‘illiberal legalism.’ The government pursues goals such as peace, justice, abundance, health, and safety, which promote the common good.
One does not have to agree with his plea for a ‘common-good constitutionalism’ to see the similarity with a recent argument by Ran Hirschl that the future of public law depends on its ability to formulate an answer to the significant global problems.