Fundamental Rights Must Do More Than Protect Us After Things Go Wrong

 Dutch fundamental-rights protection is distributed across the Constitution, treaty law, EU law, legislation, administrative principles, and sector-specific remedies640. This plural structure provides substantial protection but lacks one domestic constitutional framework that consistently states general questions of scope, limitation, positive duties, institutional responsibility, and effective remedy.

A general framework should supply a floor, not a single test for every right. Absolute rights, procedural guarantees, equality rights, classical liberties, social obligations, and ecological duties may require different standards, remedies, and degrees of judicial restraint641. More specific or stronger protections in the Constitution, treaties, EU law, or legislation must remain controlling.

The problem is therefore uneven coherence and enforceability, not the absence of a rights system. The need for reform also follows from changes in how power is exercised. People’s opportunities are no longer shaped only by traditional government decisions, but also by executive agencies, regulators, employers, landlords, healthcare providers, financial institutions and digital platforms642. Public functions are increasingly decentralized, automated, privatized or distributed across organizational chains. As a result, serious harm can arise from the combined operation of legislation, data systems, standardized procedures and institutional routines, even when no single decision appears clearly unlawful643. Existing protections are poorly equipped to identify and correct such structural effects.

Social insecurity, unequal access to public services, digital exclusion, climate change and ecological degradation further demonstrate that formal freedom alone is insufficient. Rights have little practical meaning when people lack the material, institutional or informational conditions needed to exercise them. Freedom of expression depends partly on access to communication channels, access to justice requires affordable and understandable procedures, and privacy cannot be protected effectively when powerful private organizations control personal data with little transparency. Civil, political, social, ecological and digital rights are therefore interconnected rather than belonging to completely separate constitutional categories644.

A general framework would make fundamental rights relevant throughout the entire life cycle of public decision-making645. Legislators and public authorities would have to consider rights at the design stage of laws, policies, administrative processes and digital systems, rather than treating them as a final legal checkpoint. They would need to identify affected groups, examine alternatives, assess cumulative and unequal consequences, explain their choices and establish mechanisms for monitoring and correction. This preventive approach could reveal institutional risks before they produce widespread or irreversible harm.

Preventive rights governance and adjudication should reinforce but not collapse into one another646. Legislators and administrators assess alternatives, cumulative risks, implementation capacity, and distribution before action. Courts decide concrete legal disputes on an evidentiary record and enforce minimum standards and remedies. A deficient impact assessment may justify closer scrutiny, but it should not automatically determine the legal outcome.

The framework would also clarify that protecting rights is a shared institutional responsibility. Legislators would remain responsible for establishing fair and defensible rules, public authorities for their careful application, regulators for detecting systemic problems and courts for intervening when earlier safeguards fail. Outsourcing, decentralization and complex administrative chains could no longer be used to shift responsibility until no institution remains accountable. Complaints, judicial decisions, regulatory findings and practical experience would instead feed back into policy and institutional reform647.

Where complaints, judgments, or supervisory findings reveal a recurring cause rather than an isolated mistake, the responsible authority should conduct a systemic review. It should identify similarly affected persons, suspend or modify the defective process where necessary, correct connected data and decisions, report publicly on the response, and monitor whether the remedy prevents recurrence.

Rights may require the state not only to refrain from interference but also to take reasonable protective measures against serious and foreseeable harm by private actors648. The duty is strongest where a private actor controls an essential service, creates severe dependency, exercises gatekeeping power over social participation, or exposes people to serious and foreseeable rights harm without a realistic alternative. Public responsibility may then require legislation, supervision, access duties, procedural safeguards, or an effective remedy. The form and intensity of protection should remain proportionate to the risk, the actor’s function and capacity, competing rights, and the state’s institutional competence.

The form and intensity of that duty depend on the right, the state’s knowledge and capacity, the vulnerability and dependency involved, and the competing rights of others. Regulation, supervision, collective redress, and accessible remedies may therefore be required without making every private organization directly equivalent to the state.

For citizens, the principal benefit would be that constitutional rights become more practical and accessible649. Protection would concern not only whether authority was formally exercised correctly, but also whether a measure was genuinely necessary, whether less harmful alternatives existed and whether its burdens were distributed fairly. Essential elements of rights could not be reduced to symbolic promises. People would also need realistic opportunities to challenge violations through timely, understandable and affordable procedures capable of stopping harm and restoring their position. Vulnerable groups would benefit particularly because structural disadvantage, dependency and cumulative effects would receive greater attention.

The reform would also improve democratic decision-making. Requiring institutions to explain the effects of their choices would strengthen parliamentary debate, public scrutiny and the quality of policy preparation. Thorough research, consultation and transparent reasoning could justify greater respect for democratic choices, whereas poorly investigated measures would invite closer scrutiny650. Judicial review would consequently function less as a struggle over ultimate authority and more as part of an institutional process of detection, correction and democratic response651.

A stronger rights system requires expertise, legal assistance, monitoring, and judicial capacity and may increase litigation during transition. Courts should enforce the essence of rights, non-discrimination, fair procedure, reasoned justification, and protection against severe or irreversible harm. Above those minima, elected institutions should retain a range of reasonable policy choices, especially where resource allocation and institutional design are contested652. This division should be expressed in doctrine and remedies rather than left to an undefined appeal for restraint.

The overall consequence would be a shift from a largely reactive catalogue of individual guarantees to a preventive, coherent and correctable system of public responsibility.

Fundamental rights would guide the design and operation of institutions, not merely provide arguments after something has gone wrong. This would make public and private power more transparent and accountable, improve protection against modern forms of dependency and exclusion, and strengthen the capacity of the democratic state to recognize and repair its own failures.

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640 Constitution of the Netherlands, ch. 1; European Convention on Human Rights; Charter of Fundamental Rights of the European Union, art. 51; Constitution of the Netherlands, arts. 93–94 and 120.

641 Aharon Barak, Proportionality; Steven Greer, The Margin of Appreciation (Strasbourg: Council of Europe, 2000); UN Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (2004).

642 United Nations, Guiding Principles on Business and Human Rights, HR/PUB/11/04 (2011); Gunther Teubner, Constitutional Fragments (Oxford: Oxford University Press, 2012).

643 Sabel and Simon, ‘Destabilization Rights’; National Ombudsman of the Netherlands, The Citizen Is Not a Dataset.

644 Vienna Declaration and Programme of Action, A/CONF.157/23 (1993), para. 5; UN Committee on Economic, Social and Cultural Rights, General Comment No. 9, E/C.12/1998/24 (1998).

645 OECD, Regulatory Impact Assessment (2020); European Commission, Better Regulation Guidelines, SWD(2021) 305 final.

646 Jeremy Waldron, ‘The Core of the Case Against Judicial Review,’ Yale Law Journal 115, no. 6 (2006): 1346–1406; Rosalind Dixon, Responsive Judicial Review.

647 Malcolm Langford, César Rodríguez- Garavito, and Julieta Rossi, eds., Social Rights Judgments and the Politics of Compliance (Cambridge: Cambridge University Press, 2017); Mark Bovens, ‘Analysing and Assessing Accountability.’ 648 Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights (Oxford: Hart, 2004); UN Guiding Principles on Business and Human Rights, principles 1–10 and 25–31.

649 European Convention on Human Rights, art. 13; Charter of Fundamental Rights of the European Union, art. 47; European Court of Human Rights, Airey v. Ireland, App. No. 6289/73, Judgment of 9 October 1979.