The definition and the nature of experimental legislation, as described in Chapter 2, imply that experimental regulations will only be applied to a part of the population (sample group) for the sake of the validity of the experiment. While the experiment lasts, not all citizens will be equal before the law and this implies differentiating between citizens who would otherwise be ‘equals’ in the sense underlying the principle of equal treatment.[1] Some citizens may be benefited, while others will be disadvantaged. This potential and abstract conflict between the implementation of experimental laws and the principle of equal treatment almost goes without saying, according to the Dutch Council of State.[2]

Equal treatment is a dynamic principle, in other words, what is considered unequal will vary from time to time and from place to place. The measure of equality should be based on the consideration of the concrete individual needs and the circumstances faced by citizens.[3] Legitimate and objectively justified unequal treatment may thus be lawful in many cases. This perception can equally be detected in the United States, where it has been underlined that a differentiation in the grant of privileges can be authorized in the name of the general welfare, ‘if [it results] from the nature of the case that there cannot be a general participation’.[4] This is exactly the case of experimental legislation: a differentiation between the ‘legislative treatment’ given to the sample and control groups is essential to guarantee the validity of the experiment. However, this does not mean that any differentiation grounded on an experimental law or regulation should be allowed: only an ‘objective’ differentiation will be lawful.

  • [1] David Keyaerts, ‘De wetgever en experimentalisme: de juridische grenzenvan een wetgevingsmodel’ (2013) 1 Tijdschrift voor Wetgeving 30.
  • [2] Opinion of the Dutch Council of State of 23 August 2004, No.W05.04.0365/III, Experimentenwet vooropleidingeisen, selectie en collegegeld-heffing; see also the Opinion of the Dutch Council of State in the context of theReport of the Interdepartementale werkgroep experimenteerbepalingen, Hetproberen waard (23 May 2000), Bijvoegsel Staatscourant, 10 October 2000, no.196.
  • [3] Loenen, Het gelijkheidsbeginsel, n. 8 above, 10-11.
  • [4] Cooley and McLaughlin, The General Principles of Constitutional Law inthe United States of America, n. 4 above, 248.
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