Abstract
Legislative policy has been a subject of debate for years in the Netherlands, both with regard to the quality of legislation and to the structure of the legislative process. In the light of changing ideas about the government’s role and social responsibility, alternative approaches to legislation have been developed over the recent years. One such innovation involves the use of goal-based regulation. Goal-based regulation has been promoted as providing freedom and responsibility for individuals and businesses to decide how to meet regulatory requirements, giving them the opportunity to bring their specialised knowledge to bear on problems that they understand better than anyone else.
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Notes
- 1.
See, inter alia: Dutch Ministry of Justice (2004).
- 2.
Target requirements are not only frequently used at the national level, but also at the international level. The directives of the European Union, for instance, are increasingly being based on this concept of regulation. For the European Commission’s vision on forms of European regulation, see the document “Better Regulation—Simply Explained” (2006).
- 3.
Cf. Van de Bunt and Huisman (1999, p. 29).
- 4.
See also: Duties of Care in Environmental Laws [Zorgplichten in milieuwetgeving] 2006, p. 10.
- 5.
Schauer (1991, pp. 31–34).
- 6.
See, for example: Parliamentary Papers II [Kamerstukken II] 2003/04, 29 279, No. 9, p. 19, and Parliamentary Papers II 2003/04, 29 279, No. 14, p. 6.
- 7.
Parliamentary Papers II 2003/04, 29 279, No. 9, p. 20.
- 8.
Cf. Duty of Care Provisions in Primary Education [Zorgplichtbepalingen in het primair onderwijs] (2005, p. 16).
- 9.
For a comprehensive treatment of the history and development of the rule of law, see: B.Z. Tamanaha (2004).
- 10.
Netherlands Scientific Council for Government Policy [WRR] (2002, p. 32).
- 11.
Netherlands Scientific Council for Government Policy (2002, p. 32); Van Gestel (2004, p. 1785).
- 12.
In this regard, see, inter alia: Scheltema (1989).
- 13.
See in this regard, inter alia: Oldenziel (1998).
- 14.
See, for example: Netherlands Scientific Council for Government Policy (2002).
- 15.
Scheltema (1989).
- 16.
In this regard, see Scheltema 2(003, p. 35), and Van Gestel (2004, p. 1785); Scheltema argues that legal certainty cannot mean that businesses should be inclined to desire a certain amount of certainty for a long period, where this would cause the division of responsibility between the government and business world to be less than it could be. In addition, Van Gestel asserts that the rule of law is more than just binding the government to the law and that expediency and effective protection also play a role in this respect. Van Gestel further asserts that, when regulations are complex and ambitious, but not enforceable and practicable, the purpose of the rule of law is overlooked.
- 17.
The application of target requirements not only pertains to setting standards, but also supervision and enforcement; see in this regard Westerman (2006).
- 18.
The lack of a substantive standard in the law is one of the problems which has been observed regarding legislation in today’s society. See in this regard, inter alia: Stout (1994).
- 19.
Stoter (2000).
- 20.
Westerman (2006, p. 137).
- 21.
Westerman (2006, p. 136).
- 22.
Westerman (2006, p. 137).
- 23.
Bulletin of Acts and Decrees (2007), 415.
- 24.
Explanatory Memorandum to the Decree on General Activities for Facilities for Environmental Control, p. 12.
- 25.
This example is derived from the explanation to the Regulation on General Rules for Facilities for Environmental Control, p. 37.
- 26.
See in this regard Oude Vrielink-Van Heffen and Dorbeck-Jung 2006b, pp. 63 and 67.
- 27.
See also Van der Heijden (2005).
- 28.
This carries the risk, however, that the instruction will degenerate into rigid standards, so that the instruction will take the form of compulsory requirements specifying the means. This is in itself a problem as it distorts the legal system if the enforcement policy for a regulation effectively and indirectly contains the substantive legal requirement.
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Borg, S.t., Stoter, W. (2010). Is Goal-Based Regulation Consistent with the Rule of Law?. In: Sellers, M., Tomaszewski, T. (eds) The Rule of Law in Comparative Perspective. Ius Gentium: Comparative Perspectives on Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3749-7_5
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