The Relational Turn in Dutch Administrative Law

Abstract

The structure of national continental systems of administrative law is typically determined by the classical notions of strict legal verticality and the undivided public interest. In the present era of individualization, privatization, decentralization and internationalization, these notions have come under increasing pressure. This article presents an analysis of Dutch administrative law as a case in point. How may a stable and legitimate system of judicial review of government actions take shape that responds to its modern context of ‘horizontalization’ and ‘fragmentation’, but still remains connected to its classical ideals of abstract right and the common good? In search for answers, this article first provides a theoretical and historical account of Dutch administrative law’s basic fundaments. Then, it presents an analysis of its recent ‘relational turn’, drifting away from its classical ‘autonomous’ focus on the lawful distribution of rights and goods among all members of society towards a modern ‘relational’ conception of administrative law that primarily concentrates on the settling of disputes between concrete parties. Ultimately, it proposes a way forward in which the ‘autonomous’ notions of legal verticality and the undivided common interest are still taken into consideration – embedded, to be sure, within a ‘relational’ and ‘pluralist’ theory of public law that acknowledges the ‘horizontalized’ and ‘fragmentized’ social and institutional context that it is supposed to regulate.

Keywords: administrative law, legal theory, public-private divide, judicial review, Schutznorm, Dutch administrative law