exemption in a particular case under which the applicant falls, and that the tax has therefore
been collected unlawfully.Arguably, the ultimate power of judicial review is constitutional review, whereby a
court checks whether legislation adopted by parliament itself is lawful in the light of
what the constitution provides.
A court carrying out constitutional review, if it is competent to do so, might rule that the tax
code itself is unconstitutional, for example because it imposes a higher tax on women than
on men whereas the constitution prohibits discrimination based on sex. Thus, even if the
collection of the tax took place in accordance with the law, it would still be unlawful
because its legal basis was unlawful, and in this case unconstitutional.More on this constitutional review will be discussed in Sect.8.2.8.
8.2.6 The Rule of Law
The overarching constraint from constitutional law on the state is the rule of law
itself. It is hard to define what exactly the rule of law means because interpretations
differ. In a broad sense, the rule of law may include such sweeping notions as
fairness, inclusiveness, independent adjudication, accountability, or transparency.
It also has the qualitative meaning that the law must not only be legal but also
reasonable, compatible with human rights, and fair. In its narrow essence, though, it
means that
- the state rules through law, and
- the state itself is ruled by law.
The first aspect means that the exercise of power must be performed by methods
that comply with minimum standards to prevent arbitrariness. For example, laws
that are enforced against citizens should at the very least be published before they
are enforced. It also means that the proper procedures have been followed in
making the law and that the law was made or executed by the competent authorities.
Legality The second aspect means that the state and its organs are only allowed to
perform particular tasks if it has been given the power to do so by law and to the
extent that such performance is allowed by law. Thus, state action requires a legal
basis: the state may do nothing unless it is authorized by law, a concept known as
the principle of legality.
This principle plays an important role in both criminal law and administrative law. As the
requirement of a legal basis, it also functions in European Union law. See Sect.10.6.5.
The opposite is true for private citizens: they may do everything unless it is
prohibited by law. Even where the state is authorized to act, it remains bound by the
law in the performance of the action itself.
174 A.W. Heringa