Constitutional Genealogy of Judicial Review in the Administrative State

Abstract

Administrative procedural law has long been based on the idea that the administration enjoys freedom in the execution of laws that are established through democratic procedures, and that the administration is therefore primarily subject to political, not judicial, oversight. Public administration has however become increasingly complex, and rule-making occurs more and more by specialized administrative agencies. This high degree of professionalism makes it difficult for democratic bodies to properly check the administration. Therefore, administrative procedural law has to enable administrative courts to move beyond the ‘margin control’ on the exercise of discretionary powers by the administration and facilitate an effective legal protection against the administration.

Ernst Hirsch Ballin is distinguished university professor (Tilburg University), professor in human rights law (University of Amsterdam), and president of the T.M.C. Asser Institute for International and European Law. He is also a member of the Scientific Council for Government policy (WRR). Ernst Hirsch Ballin was from 2000 a member and from 2003 the president of the Administrative Jurisdiction Division of the Council of State, until he was reappointed as the Minister of Justice of the Netherlands (2006–2010). He recently published on the future of the European Union, citizens’ rights and fundamental rights protection, and trust in the rule of law.