Abstract
Fundamental legal principles may function as a check on legislative power protecting citizens against arbitrary interferences with their liberty. This contribution deals with the principle of equality and the principle of certainty. First, the testing of legislation against the principle of equality is presented as a case study of constitutional review. In the Netherlands, the constitutional dialogue between the legislator and the Dutch Supreme Court revolving around the principle of equality demonstrates a fair amount of subtle details. As a result, constitutional review can hardly be called an all or nothing affair. Secondly, retroactive tax legislation is dealt with. The legislator does seem to take the principle of legal certainty, another fundamental legal principle, quite seriously, although no testing of statutory legislation is possible by the courts. With regard to retroactive tax legislation the Government has committed itself in a memorandum, requested by Parliament, to adhere to rules of conduct with regard to different situations where it deems retroactive tax legislation to be justified. Thus, a soft law instrument facilitates a dialogue between different partners in the business of law-making.
Highlights
As the German lawyer and legal philosopher Gustav Radbruch argued, legal certainty is definitely one of the most fundamental legal values.[118]
The Dutch Supreme Court always employs this method to decide whether a tax statute violates the principle of equality, which is in conformity with the method applied by the European Court of Human Rights (ECtHR).[76]
116 The Supreme Court judges possibly fear that the political background of new candidates for the Supreme Court will become more important at the cost of their legal expertise
Summary
As the German lawyer and legal philosopher Gustav Radbruch argued, legal certainty is definitely one of the most fundamental legal values.[118]. The well-known desiderata formulated by Lon Fuller spring to mind These eight conditions are ‘the sort ideals which articulate the law in the rule of law.’[121] These desiderata, embodying the ‘inner morality of law’, may serve as a handle to operationalize the value of legal certainty. As Fuller points out, there is a close affinity between the harm resulting from too frequent changes in the law and the harm done by retroactive legislation. Both are caused by legislative inconstancy.[126]
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