Autonomie als voorwaarde tot legaliteit

Netherlands Journal of Legal Philosophy 38 (1):11-16 (2009)
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Abstract

Brouwer defended the view that the autonomy of the individual citizen is furthered by articulated, precise and clear legislation. The question arises whether all kinds of rules can be said to enhance such autonomy. It is argued that a distinction should be drawn between rules that dictate desirable outcomes, on the one hand, and rules that determine the way the game is played, on the other. Rules of the game often reflect the way they were drafted and can be seen as the embodiment of power relations between rule-makers. Rules that dictate outcomes, on the other hand, are often drafted by experts who analyse the goals to be reached. The view is defended that only rules of the game – potentially – enhance the autonomy of the citizen, whereas outcome-rules are potentially manipulative, tending to exclude those who are ill-equipped to realize the prescribed outcomes. The virtues of rules therefore do not merely reside in their clear and precise nature, but are largely derived from their capacity to regulate the relations amongst citizens who were included in the process of rulemaking

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