Summary

Many legal cases that are to be judged, find a solution in a rule in the written law. The basic assumption is that judges and administrative bodies are bound to that rule and its solution. Nevertheless, in exceptional cases this results in judicial decisions that are highly unfair. Although the rule is valid, due to special circumstances of fact its solution does not seem to fit. This is caused by the general terms of the law. Generality is necessary, because the legislator cannot foresee every possible situation, nor can a rule be formulated too specifically.

In those exceptional cases, the question is whether judges and administrative bodies are allowed to put the written rule aside (‘buiten toepassing laten’), although they acknowledge that it is valid. Is it permitted to make exceptions on the law to prevent injustice (‘billijkheidsuitzonderingen’)?

Aristotle took the view that this is authorized, and this perception was enunciated by many in the history of law. Also, in Dutch case law, exceptions are made regularly. In different areas of law and regarding certain subject matters, specific exceptions are accepted. For example, in private law exceptions can be based on equity, ‘beperkende werking van de redelijkheid en billijkheid’; in criminal law there are justification and excuse defences, ‘strafuitsluitingsgronden’; administrative law acknowledges the contra legem effect of principles of good management, ‘contra-legemwerking van algemene beginselen van behoorlijk bestuur’; and fraus legis is an example in tax law. However, in Dutch law it is not commonly accepted that judges and administrative organs are allowed to make exceptions on the law for reasons of justice. There is also case law where they feel obliged to base their decision on the law, although this results in an evidently unfair decision. Thereby, central question in this research is whether Dutch law permits exceptions on general rules in the written law to prevent clearly unjust decisions. Also, it is investigated whether there should be more room for those exceptions.

To answer these questions, constitutional law is highly important. In what way does it permit and restrict the scope for the exceptions? In addition, this book focuses on case law about exceptions. Which exceptions do judges and administrative organs make, which do they reject, and why? Also, alternatives to exceptions are discussed, like creative interpretation of the law.

Conclusion of this research is that in some areas of Dutch law, it is recommended to make more exceptions for reasons of justice. Constitutional law can allow and even support this. Legal certainty is of paramount importance, but in special cases, individual justice must come first. When deciding on an exception, attention must not only be paid to constitutional limitations, but also to contraindications that are also discussed in this research like the principle of legality, possible harm to the general interest or the interests of a third party, and the fact that a written rule especially aims to exclude room for exceptions.

In Dutch administrative and constitutional law, the number of clearly unjust decisions will be lowered if exceptions are more generally accepted. In private law, but especially in criminal law, exceptions can replace artificial interpretations of the law.