Orphaned Design

I once called the ministry with a question that sounds simpler than it is: which components make up the central-government grant to universities, and why do the parameters stand as they stand. The ministry referred me to the implementing agency, because the agency calculates the grant. The implementing agency referred me back to the ministry, because it merely executes what is fixed there. Both answers were correct. The department fixes but does not calculate, the executant calculates but does not fix, and the question of how the fixing relates to the outcome belongs to neither. The circle closed within ten minutes, and no one had made a mistake.

That last point is the real result. Anyone who can complete this round without anyone getting anything wrong has demonstrated something no research report can demonstrate: the system contains a layer that is unmanaged. Not the fixing — that is assigned. Not the calculation — assigned too. What is unmanaged is the layer between them: why it is put together this way, and what happens if you change something.

No loss of memory

The obvious diagnosis is forgetting. Institutional loss of memory is a documented phenomenon; around the turn of the century Christopher Pollitt already described how governments lose their own past through reorganisation, digitisation and rotation.¹ But the diagnosis does not fit here, and the proof is a telephone list. For the General Administrative Law Act (Awb), the designer remained reachable for decades as government commissioner, and he is consulted into old age whenever an amendment touches the structure.² The same story is told of other core regulations — the Building Decree is the best-known example in corridor talk: designers of very advanced age still being called because no one else can explain why the system is put together the way it is. If the knowledge were truly lost, no one would call any more. That calls are made proves the opposite: the knowledge exists, it is actively sought, only it sits in a single head.

What the organisation has lost, then, is not the rule. The text is there, the application runs, the manuals and commentaries fill cabinets. What is lost is the ability to play with the rule. The distinction is between repeating sentences and forming new ones. Someone who can only repeat a language does not speak it; someone who can only execute a regulation has not mastered it. The designer possesses something written down in no commentary: he knows which provision was a compromise, which a technical necessity, and which a chance outcome that could just as easily have gone another way. He knows, in short, which amendment the structure survives and which brings it down. That goes beyond knowledge of the rule: it is command of the room for judgement around it. Call it the grammar of the system. Exegesis cannot replace it, because commentary interprets what is there, and grammar is about what might also have been there.

University funding shows what a system looks like that has lost its grammar. The committee that reviewed it in 2019 found that a considerable part of the distribution is historically determined.³ Historically determined is the polite phrasing for: refers to a trade-off no one can retrieve any more. Meanwhile the formula calculates on, unperturbed. The service sails back and forth, neatly on schedule, and the question of where it is heading does not arise.

An error of sequence

Under the heading of dissociation, this body of work describes how organisations hold two irreconcilable registers of knowledge at once without any correction taking place. That is an error of simultaneity: both registers exist, both are used, and they never meet. What is before us here is a different error, an error of sequence. There are not two conflicting registers; there is one register, and the rationale has left it. Exhaustion, not contradiction. The remedy differs accordingly: against dissociation it helps to confront the registers, and here there is nothing to confront, because on the other side stands no one.

The phenomenon lies close to two existing concepts and coincides with neither. Word-continuity describes a word that stays in place while the matter beneath it shifts. The congealed outcome describes an outcome that hardens into a norm. Here the word is intact and the matter is intact; what has vanished is the room for judgement around it. The system has not changed. It has become unplayable, and for that the toolbox had, until now, no word.

It also forces a correction to the core concept itself. Safeguarding is the primary test in this body of work: what still stands when no one is watching any more. Well then, by that measure the funding formula is perfectly safeguarded. It outlived its designers, its reorganisations and its political occasion, and it calculates on without anyone giving it a second look. What it did not survive is its own justification. Safeguarding as a test is therefore underspecified: something can be safeguarded in form and at the same time beyond repair. You do not see that second property as long as you test only for the first. A regulation without grammar is an orphaned design: safeguarded in form, belonging to no one, and there is no parent left to ask how it was meant.

Orphaned designs give themselves away in their amendment history. Someone who does not know what the structure can take leaves the load-bearing walls alone; things are added on, never rebuilt. A correction factor added, a transitional arrangement laid over the top, a compensation item set alongside. Each layer solves the acute problem and makes the next reconstruction more expensive. After twenty years the regulation can only be understood as sedimentation, no longer as design. What then remains is comprehensive revision, and that requires precisely the knowledge that has vanished. This is why such revisions so often run aground, or degenerate into a new system that reproduces the old problems within ten years. No one can test which parts of the old construction had a function that no one names any more. Someone who does not know why a parameter is there cannot establish whether it may come out.

What still gets made after the turn of the century

The production side of this story is described elsewhere in this body of work: the great Dutch statutes date from the decades before the turn of the century, and the legislative-drafting architecture that maintained that craft has been dismantled without a new one being raised.⁴ The 1994 General Administrative Law Act is the capstone of that series. What comes after is of another kind. Bundling: the Environment and Planning Act merged dozens of statutes without redesigning the architecture.⁵ Transfer: the 2015 decentralisations moved an existing system to a different tier of government. Obligation: the Open Government Act (Woo) lays a duty over existing matter. Three forms of legislation, none of the three a design.

The three forms share, moreover, one basic trait: they are statutes that place the substantive trade-off elsewhere. For years Wim Voermans has pointed out that the statute in the formal sense is increasingly a shell; by far the majority of generally binding rules no longer pass through parliament but are fixed by order in council or ministerial regulation.⁶ The Environment and Planning Act is the extreme case: one statute, four decrees, and the norms sit in the decrees. The empty law is thus the ground-form beneath the three types, and it feeds the wear this series describes, because a legislator that now only fixes frameworks no longer exercises the substantive trade-off. This is worked out in the separate observation De lege wet (The Empty Law) accompanying this series.

The lens makes a prediction here that can be tested. A statute born without grammar is unplayable from day one, not only forty years on. There is no one to call, because there never was a designer; there was a project organisation, and it was dissolved around the entry into force. The Youth Act (Jeugdwet) is the case. Within ten years of introduction there lay a Reform Agenda and an expert committee was examining the feasibility of it.⁷ To the question of which trade-off sits in which provision there is no answer, because that trade-off was never made at statute level. It was passed down at the transfer to the implementation, where it has since been improvised anew every day.

The exception shows the conditions

There is one system statute from after the turn of the century that escapes this pattern, and precisely for that reason it is the most important exhibit: the Health Insurance Act (Zvw). Four factors explain that, and none of the four is coincidence.

First: the grammar was older than the statute. The Zvw entered into force in 2006 but began in 1987, with the Dekker Committee, and ran through twenty years of system debate, by way of the Simons plan that ran aground in the early 1990s.⁸ By the time it was signed, every trade-off had been fought out in public more than once. The failed Simons plan was the most expensive and most instructive phase of the design: every attempt that ran aground left behind room for judgement that the next attempt inherited. Design time, in this light, is the period in which the room is laid down that later makes maintenance possible.

Second: the grammar had a home outside the state. The design leaned on the theory of regulated competition, and in the Netherlands that theory was maintained by a living academic school, the Rotterdam health economists.⁹ That is the rotation-proof construction a department cannot itself provide: professors do not rotate on senior-civil-service terms, and a school reproduces itself through doctoral candidates. For the Zvw, the question of why it is put together this way has an address that does not retire, because the address is a discipline, not a person.

Third: maintenance of the core mechanism is an annual cycle. The risk-equalisation system, the heart of the system, is recalibrated every year in a standing research cycle in which department, implementation and that same academic school sit around the table.¹⁰ Grammar does not wear out through time but through disuse, and the Zvw has placed its core parameters in a regime in which disuse is impossible. Someone who must recompute every year why the parameters stand as they stand cannot forget why they are there.

Fourth: the compromise was explicit and had an owner. The trade-off between market forces and solidarity — private execution against a duty to accept all applicants, a flat-rate premium against the healthcare allowance — stands in the statute itself, legible as a trade-off. And there stood a minister with an unbroken mandate to steer it through implementation. Later battles — that over free choice of doctor under Article 13 foremost — could therefore be fought as battles over the balance, not as archaeology into what had once been meant.

The pension reform — from the Goudswaard Committee in 2010, by way of the 2019 agreement, to the Future Pensions Act of 2023 — broadly followed the same recipe, with the Social and Economic Council (SER) as arena and Netspar (the Dutch pensions research network) as the external school.¹¹ It is the last time the process ran its full course, and probably the last time it could, because it ran on the old infrastructure: a consultation arena that outlives cabinets, social partners with twenty-year memories, a funded knowledge institute with a single remit. Nothing comparable stands behind it.

Seven links, one chain

Laying the working cases beside the empty ones, one can name the conditions under which grammar arises. There are seven, and they order themselves into three groups.

Three links are reserves. Knowledge: command of the room for judgement, lodged in a place that survives rotation. Time: a horizon long enough to let trade-offs ripen, and the expectation among those involved that the file and they themselves will still be there in twenty years. An arena: a fixed place for the discussion, one that outlives cabinets, so the conversation continues in the intervals between.

Two links are working forms. Room for loss: something must be on the table that can be lost, because grammar arises through attempts that fail and from which the next attempt inherits. And a practice regime: a recurring act in which the rationale is exercised on a live question, so that it does not degrade into archive.

Two links are forces. An owner: someone with a mandate that spans the introduction and the willingness to pay the political price, because without an owner even a ripe grammar does not become a statute. And counterplay: a body that is technically a match for the maker in matters of legislation and that compels the rationale during the design, because unexamined trade-offs are never made explicit.

The chain is not a sum. The links do not compensate for one another; the weakest missing one blocks the whole. Twenty years of time without room for loss yields the tax file. Knowledge without an arena yields the Borstlap Committee. An owner without a ripened grammar yields the Youth Act. That explains the paradox with which this piece began: the process runs its course nowhere, while almost every link exists somewhere. They exist scattered. The chain requires them at once, on a single file.

The countable proxies

There remains the question of why no one notices this. The answer is that each link has been given a substitute that imitates its form and that is countable. Knowledge became a report. Time became lead time. The arena became a one-off committee, dissolved on the day the report appears. The one moment at which the grammar sits in living heads thus coincides with the moment those heads disperse. Room for loss became a pilot. The practice regime became evaluation after the fact. The owner became a programme organisation. Counterplay became the online public-consultation portal (internetconsultatie.nl). Seven substitutions, all seven tick-boxable, and together they form a system that makes the motions of designing without designing.

The tax system is its purest demonstration. Since the Van Weeghel study committee in 2010, a building-blocks report has appeared every few years, the most recent in 2024; each report stacks on the previous one, the analysis is broadly endorsed, and in fifteen years there has been no comprehensive bill that could fail.¹² The Borstlap Committee delivered an authoritative diagnosis of the labour market in 2020, followed by piecemeal repairs that undermine the coherence of that diagnosis.¹³ The point is not that these reports are bad; they are often excellent. The point is that a report cannot fail. Someone who stakes nothing loses nothing, and someone who loses nothing does not learn which trade-off was worth the fight. A report describes trade-offs; grammar arises by making them and losing them.

This is the countability trap at system level, and it is more dangerous here than elsewhere because it blocks self-correction. A system that knows it can no longer make great statutes could repair that. A system that produces a building-blocks report every few years believes it is at work.

The test

The question to put to a system is therefore not whether there was ever a designer, but where the design competence is lodged and in what regime it is exercised. Three regimes stand out, with three life expectancies. The personalised regime: the Awb construction, in which the state solved the problem by giving the person in question a title. That works, until that person falls away. The disciplined regime: the Zvw construction, in which the rationale is exercised annually in a cycle with an external school. That works, as long as the cycle turns and the school exists. And the empty regime: the funding formula, in which the competence is lodged nowhere. That works, until the first question.

This series works out the seven links separately, each along the same build: the working case, the empty case, and the countable substitution that renders the empty case invisible. The order follows the three groups: first the reserves, then the working forms, then the forces. The action perspective is thereby built into the series, because unlike a cultural problem or a shortage of means, each link is separately organisable, and on at least one file each link has at some point been organised.

Finally, the reason this is not an archive matter. The safeguarding question — elsewhere in this body of work the question of what still stands when no one is watching any more — takes a literal shape here, with an answer and a date. The formula calculates on. The question of why still has a telephone number. It is answered by someone in their eighties.

Footnotes

1. C. Pollitt, ‘Institutional Amnesia: A Paradox of the “Information Age”?’, Prometheus 18 (2000) 1, p. 5-16. ↩

2. Michiel Scheltema was government commissioner for the general rules of administrative law from 1983 to 2019; on his departure in February 2019 the office was discontinued. Even afterwards he is consulted on system questions concerning the General Administrative Law Act. ↩

3. Adviescommissie Bekostiging Hoger Onderwijs en Onderzoek (the Van Rijn Committee), Wissels om (Switching the Points), The Hague 2019, on the partly historically determined distribution within the funding of higher education and research. ↩

4. Jacob Huibers, De gedissocieerde wetgever (The Dissociated Legislator), Statecraft, 2026, statecraft.nl. ↩

5. Environment and Planning Act, in force from 1 January 2024; a bundling of 26 statutes in the field of the physical living environment. ↩

6. W.J.M. Voermans, ‘Gedelegeerde insubordinatie. Lagere regels die afwijken van parlementaire wetgeving’, in: De staat van wetgeving. Opstellen aangeboden aan prof. mr. C.A.J.M. Kortmann, Deventer 2009, p. 47-66; R.A.J. van Gestel and A. Vleugel, De betekenis van kaderwetgeving en delegatie, research commissioned by the Council of State, 2011. See the observation De lege wet (The Empty Law) accompanying this series. ↩

7. Hervormingsagenda Jeugd 2023-2028 (Youth Reform Agenda, 2023); Deskundigencommissie Hervormingsagenda Jeugd (the Van Ark Committee), established 2024, first advisory report Groeipijn (Growing Pains), January 2025. ↩

8. Commissie Structuur en Financiering Gezondheidszorg (the Dekker Committee), Bereidheid tot verandering (Willingness to Change), 1987; Health Insurance Act, in force from 1 January 2006. ↩

9. After the model of regulated competition of A. Enthoven; in the Netherlands worked out and maintained by the Rotterdam school around W.P.M.M. van de Ven and F.T. Schut (Erasmus University). ↩

10. The annual recalibration of the risk-equalisation model in the research cycle of the Ministry of Health, Welfare and Sport (VWS), the National Health Care Institute, health insurers and external researchers (Werkgroep Ontwikkeling Risicoverevening). ↩

11. Commissie Toekomstbestendigheid Aanvullende Pensioenregelingen (the Goudswaard Committee), Een sterke tweede pijler (A Strong Second Pillar), 2010; pension agreement, June 2019; Future Pensions Act, in force from 1 July 2023; Netspar, founded 2005. ↩

12. Studiecommissie Belastingstelsel (the Van Weeghel Committee), Continuïteit en vernieuwing (Continuity and Renewal), 2010; Bouwstenen voor een beter belastingstelsel (Building Blocks for a Better Tax System), 2020; Belastingen in maatschappelijk perspectief (Taxation in Social Perspective), 2024. ↩

13. Commissie Regulering van Werk (the Borstlap Committee), In wat voor land willen wij werken? (What Kind of Country Do We Want to Work In?), 2020. ↩