The Principle of Legality with Regards to Administrative ActionsPosted by On

112 Although the extended principle has not been applied, there have been a number of cases during this interregnum in which individual judges have concluded that PoL may have a proportionality dimension: HM Treasury v Ahmed [2010] UKSC 5, [2010] 2 A.C. 534, at [122] (Lord Phillips); Pham v Secretary of State for the Home Department [2015] UKSC 19, p. [113], [118]–[119] (Lord Reed). Access to content on Oxford Academic is often made possible through subscriptions and institutional purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: This understanding of the judicial role is deeply rooted in U.S. public law. In particular, it has strong parallels with Professor James Thayer`s classic position on the narrow role of the courts in reviewing the constitutionality of laws. 62 62 See in general James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.

129, 140 (1893) (Development of an Early Theory of the Role of the Courts in Reviewing the Constitutionality of Laws). Professor Thayer argued that the courts should respect the views of Congress with respect to the «important» power of judicial review of the constitutionality of legislation, since Congress has been explicitly charged by the Constitution with the exercise of legislative powers «not only to legislate, but to make an interpretation of the Constitution that will profoundly affect the entire country. to enter into the most serious things, to change them fundamentally, even to revolutionize them. 63 63 Id., p. 136. For Professor Thayer, this «respect» was not a simple matter of politeness, but was based on «very solid» reasons of «politics and law». 64 64 id. The Constitution gives Congress not only the power to take interim or interim measures, but presumably final measures, 65 65 id. to 135 («[T]he institutions entrust legislators not only with a preliminary decision on the matter, but [also] consider that this decision could be the final decision.»). Tight for Professor Thayer, limits the judicial role. 66 66 Id., pp.

135-36 (the power to «make an interpretation of the Constitution that profoundly affects the whole country» is transferred to the legislative power and, therefore, the decisions of the legislature deserve to be respected). Close The situation is similar with respect to judicial review of the scope of an organization`s powers. Although the authorities do not have the direct electoral link of the Congress, among many legal delegations, their actions are also likely to be definitive. Therefore, respecting their judgments is not only a matter of courtesy, but also a matter of law. Giving «weight» to the views of agencies, even in determining their authority, offers fidelity to the law in Professor Thayer`s sense – it recognizes that the allocation of responsibility rests with the agency to act with an inferred purpose. In short, the way authority is judged is a function within a part of how it is originally assigned. Unfortunately, Mathews has not experienced much of South Africa`s miraculous transition from repressive minority rule to constitutional democracy, a process that officially began ten years ago under the auspices of the Constitution of the Republic of South Africa Act 200 of 1993 («Interim Constitution»)[6] and continues today under the «final» or constitution of 1996. [7] Had he done so, he could very well have concluded that South Africans in general, and administrative lawyers in particular, no longer needed the rule of law. Finally, the 1996 Constitution, like its predecessor, is a lengthy document full of human rights, including the rights to administrative justice set out in article 33. In addition, Article 33(3) requires national legislation to give effect to those rights and provide for judicial review of administrative measures. and that detailed national legislation was adopted as the Law on the Promotion of Administrative Justice No. 3 of 2000 (`the Law on Administrative Justice`).

With all this explicit justification of judicial intervention[8] and with all this specificity, who could need the universality (or even uncertainty) of the rule of law? The rule of law, like democracy, is one of our most fundamental political commitments. 1 1 See Jeremy Waldron, The Rule of Law and the Importance of Procedure [`Waldron, Importance of Procedure`], in Getting to the Rule of Law 3, 3 (James E. Fleming ed., 2011) («Getting to the Rule of Law») (referring to the place of the rule of law in the «constellation of ideals that dominate our political morality»). Close While the rule of law is an old ideal, 2 2 See, for example, Judith N. Shklar, Political Theory and the Rule of Law 1, 2-4, in The Rule of Law: Ideal or Ideology (Allan C. Hutchinson & Patrick Monahan eds., 1987) (describes Aristotle`s account of the rule of law). Interest in it has regained momentum in recent years, in part because it provides a basis for evaluating a variety of contemporary institutional arrangements. 3 3 See Richard H. Fallon, Jr., «The Rule of Law» as a Concept in Constitutional Discourse, 97 Colum. 1, 43 (1997) (stating that a characteristic purpose is to serve as a basis for evaluating practices – and removing them from the ideal). Close Some researchers have clarified rule of law requirements for court proceedings.

4 4 See, for example, Waldron, Bedeutung des Verfahrens, loc. cit., note 18 (presentation of procedure as a value of the rule of law). Others have dealt with his complexion in constitutional discourse. 5 5 See, for example, Fallon, op. cit. cit., note 3, pp. 24-36 (Examining the role of the invocation of the rule of law in constitutional debates). Close Some specified rule of law values for new groups of institutions such as global administrative institutions, 6 6 See, for example, Benedict Kingsbury, The Concept of `Law` in Global Administrative Law, 20 Eur. J.

Int`l L. 23, 32–33 (2009) (Introduction to the Rule of Law for Global Administrative Law). Narrow or new models of State action. 7 7 See, for example, Leighton McDonald, The Rule of Law in the `New Regulatory State`, 33 Common L. World Rev. 197, 215-21 (2004). Still others have examined its role in promoting legality in conflict-torn societies. 8 8 See, for example, Ganesh Sitaraman, The Counterinsurgent`s Constitution: Law in the Age of Small Wars 183–222 (2013).

Close This indicates greater respect, in which the Agency is faced with a requirement for consistency. Since many regulatory laws are intransitive, 129,129 See note 74 above and accompanying text (which characterizes administrative government to include broad delegations to administrative officials). Narrow agencies have strong legislative powers. Based on a wide range of judgments, the Agency`s responsibility is to: Implementation in a consistent and understandable manner. 130 130 Strauss, Deference Is Too Confusing, supra note 53, p. 1146. Close The duty of coherence could be considered a necessary feature of tolerance by a broad delegation. Just as the agency does not have the prerogatives of the Congress of obscurantism, 131,131 See United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) («[T]he communities do not quite have the prerogative of obscurantism reserved for legislators.»).

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