The relationship between human scale, customization, equality, precedent setting and proportionality

September 10, 2024 by

Bert Marseille

Administrative law struggles with the pride of custom equality precedent. Customization is presented as an ideal, setting a precedent as a spectre and the principle of equality, there's no getting around that. But to what extent is customization a viable ideal, is the fear of setting precedents justified and what does the principle of equality actually require of the government? In this blog, I'm going to find answers to those questions. I'm doing that step by step. I'll start with understanding the human scale, come via customization, it principle of equality and precedent effect bee proportionality as the key to my answer to come true.Human scaleThe concept of customization is often mentioned in the same breath as the human dimension. A column by Marcel Levi about the human scale in healthcare contains a wonderful description. Levi states briefly but firmly that people as a person and do not want to be treated as a number and do not want to get lost in unclear organizations and processes.Michiel Scheltema says essentially the same when he compares the “responsive rule of law” with the “bureaucratic rule of law”: the citizen is not there for the government, but the government for the citizen. The government must empathize with the citizen and ask itself the question: what does it need, what has it been helped with? What does it mean in concrete terms? Putting the human dimension first has consequences for both government services and the content of the decisions it takes. When providing services, the human dimension means, among other things, that the government is accessible and reliable and takes their ability to do.CustomizationWhen it comes to decision-making, the human dimension means that, as a government, you do justice to citizens' interests. The UWV Strategy 2021-2025 makes this abstract requirement very concrete by distinguishing between “standard situations” and “complex or different situations”. If the situation is standard, it is sufficient to apply the normal rules when making decisions. But in complex or different situations, more is needed. Then the human dimension requires that you customization delivers. This means that when you reach a decision or find a solution for the person, you take into account the special characteristics of this individual case. The ambition to apply the human dimension to services and decision-making can lead to many questions and dilemmas. How do you know if you are dealing with someone with a limited ability to do things and it is therefore necessary to provide additional explanation, support and/or help? How do you recognize whether there is a standard situation or a complex or different situation? And, if the latter is the case: what exactly does customization mean, and what to do if laws or policies restrict the customization that can be provided?Precedent effectOffering customization can mean making an exception to a fixed rule. Then the fear of setting a precedent can set in. Precedent effect means that, after you have made that exception, in every comparable case — due to the principle of equality — you must make that exception again.EqualityThe principle of equality requires that equal cases be treated equally and unequal cases unequally to the extent that they differ from each other. Is the fear justified that customization, due to the validity of the principle of equality, will lead to an undesirable precedent (undesirable, because what you thought was the exception seems to be the rule)? I don't think so and rely on the model of Gerards about the review by the administrative court of an appeal against the principle of equality. This model is equally applicable to decision-making by governing bodies.ProportionalityGerards states that when assessing claims of unequal treatment, assessing them against the principle of equality is only the first step. There must always be a second step. The reason: cases are never completely the same. According to Gerards, the question of exactly how (un) equal cases are is less important than the question of justifying treating equal cases differently (or treating 'unequal' cases equally). Thus, the crucial question when assessing against the principle of equality is whether it is disproportionate to treat them differently or equally, given the degree of (un) equality between the cases. Assessment against the principle of equality also always includes review against the principle of proportionality. In a paper that I wrote with Marc Wever and Heinrich Winter last year, we argue that Gerards' model is comforting for governing bodies where there is a fear of setting an unwanted precedent. Because it is not necessarily unlawful to treat similar cases differently, or to treat unequal cases in the same way. If there is a justification, it is possible. If an administrative body wants to provide customized solutions because it believes there is a complex situation, it is actually always in the right place. It will take little effort to explain why the principle of equality requires customization. After all, the unequal treatment compared to another case is necessary due to the different specific circumstances of both cases.But what if an administrative body does not want to provide customized solutions, because it believes that there is no complex or different situation, but simply a standard situation? Then it must be able to motivate why it is not disproportionate to treat cases that are slightly different from each other equally (or to treat cases that are very similar, but not treat cases that are very similar). If an administrative body that does not want to provide customized solutions comes up with the argument “fear of precedent setting”, there is little chance that it will be heeded by the judge. It is more likely to argue that equal treatment for cases that are unequal in certain respects (or unequal treatment of very similar cases) is not disproportionate, given the interests served by that choice. In our paper, Marc Wever, Heinrich Winter and I cite as an example a conflict that took place almost thirty years ago over a life-size coffee pot that was displayed in front of a tableware store in the city center of Groningen. It had to step down when the municipality adopted a policy that no store in the city center was still allowed to display goods on the street. The owner pleaded for an exception, because the coffee pot was more than simply displaying goods on the street, but represented cultural heritage. It was true that no store in the center of Groningen has been like this for so long oversize had a theatrical emblem, but the municipality could not resist applying customization. The retailer went to the judge, but it sided with the municipality. Despite the uniqueness of the coffee pot, the importance of the retailer did not outweigh the importance of a spacious and clear street scene in Groningen. binnenstad.Dat brings me to the answer to the question formulated at the beginning of this blog: for a government that takes the human dimension as the starting point for its actions, the principle of proportionality is the key to dealing with the principle of equality in a nuanced way, for tackling the fear of precedence. development and for a well-considered choice whether or not to allow for customization to fit.

About the Authors

Bert Marseille

Bert Marseille is professor of public administration, in particular the empirical study of administrative law, at the University of Groningen