In my student days a couple of decades ago, we were taught that the law always needs explanation and is never self-evidently clear. After all, it is impossible for a law to be clear in all cases in practice. There are numerous ways of interpreting the law, in which conscience always plays an important role in the context of a “reasonable interpretation” of the law. Officials and judges, in this view, are never literalists, but always use their full intellect and conscience.
In these times of polarization, pressure and the accompanying culture of fear, I unfortunately see and hear more and more statements such as ‘the law does not allow us to do otherwise’ or ‘this is just the law’. In the public discourse, the Toeslagenaffaire or childcare benefits scandal has brought to light that our highest administrative judge believes that legal certainty, as the result of consistent application of the law, is the opposite of “customization”. For example, in its reflection report on the Toeslagencrisis, the Council of State observed that the administrative judge ‘is increasingly expected to find a good middle ground between uniformity and customization in his rulings’.
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