a Comparative Perspective
Elgar Monographs in Constitutional and Administrative Law series
Chapter 6: The principle of proportionality
Both sunset clauses and experimental legislation break with the traditional paradigm of permanent legislation. Breaking with tradition does not need to be regarded as a ‘bad thing’. As Justice Holmes stated: ‘the past gives our vocabulary and fixes the limits of our imagination … continuity with the past is not a duty. It is only a necessity’. This ‘vocabulary’ may be used to assist judges in assessing whether legislative choices have been reasonable, but it should be complemented by an active search of facts. Instead, in light of the lack of information and rapid technological and social developments, it might not even be reasonable to regulate a situation ‘forever’. Instead, sunset clauses and experimental legislation may be a proportionate choice, particularly as far as the limitation of freedom and property of citizens is concerned. Sunset clauses and experimental regulations will not always limit fundamental rights, but the choice to do so on a temporary and/or an experimental basis should pass a proportionality inquiry. The importance of performing a proportionality assessment responds to the Dutch Council of State’s argument that experimental legislation should be regarded as a ‘last resort mechanism’.
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