The role of policy in the exercise of discretion: a comparative search for fairness

Jansen, Friso (2020) The role of policy in the exercise of discretion: a comparative search for fairness. Juris Poiesis, 23 (32). pp. 657-661. ISSN 2448-0517

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The executive in implementing the wishes of parliament is often faced with a problem of allocation. How to distribute limited resources and exercise the discretion afforded to the executive in such a way that this is both procedurally and substantively fair? The answer lies in the formulation of a policy. Through clear and transparent procedures citizens would be treated equally, therefore delivering administrative justice. Different countries, however, seem to prioritize different conceptions of fairness and equality. While in English administrative law
the focus is placed on the need for a scrutiny of the individual circumstances of a claimant to avoid fettering discretion in Dutch administrative law the stress is placed on the claimant to
prove he should be treated differently to the standard case envisaged in a policy document. The question becomes whether on closer inspection these theoretical differences in approach reveal differences in practical application. This paper will try to answer some of these questions based on a comparative reading of law and jurisprudence from both countries.

Item Type: Article
Date: 28 August 2020
Subjects: M200 Law by Topic
Divisions: Faculty of Business, Law and Social Sciences > School of Law
REF UoA Output Collections > REF2021 UoA18: Law
Depositing User: Friso Jansen
Date Deposited: 17 Sep 2020 10:23
Last Modified: 09 Oct 2020 12:52

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