8. Substantive unlawfulness

2021 ◽  
pp. 287-331
Author(s):  
Timothy Endicott
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Authority ◽  
The Rule Of Law ◽  
Legitimate Expectations ◽  
Principle Of Legality

This chapter shows that judges must substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality. When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made. Each of these interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review.

8. Substantive fairness

2018 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Authority ◽  
The Rule Of Law ◽  
Legitimate Expectations ◽  
Principle Of Legality

This chapter shows that judges must substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality. When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made. Each of the interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review

The Rule of Law

2020 ◽  
pp. 107-122
Author(s):  
Yvonne Tew
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Federal Court ◽  
Federal Courts ◽  
The Rule Of Law ◽  
Legal Limits ◽  
Basic Features ◽  
Principle Of Legality ◽  
Civil Courts ◽  
Court Of Appeal

Accounts of the rule of law in some Asian states have typically been portrayed in highly formalistic terms. Singapore, for example, has long been characterized as having a stable, efficient legal system that perpetuates a “thin” rule of law in service of the state’s objectives. This chapter constructs a more robust conception of the rule of law, which is fundamentally connected to the courts’ power of judicial review. The Malaysian Federal Courts decision in the 2018 case of Indira Gandhi v. Pengarah Jabatan Agama Islam reveals a notion of the judicial power of the courts as a necessary corollary of the rule of law. Further, the Federal Court expressly declared the civil courts’ judicial review power and constitutional interpretation as basic features of the constitution that cannot be altered by formal amendment. This rule of law conception is in line with the principle of legality, premised on the notion that all power has legal limits, as the Singapore Court of Appeal has articulated. This emerging account of the rule of law is inextricably linked to judicial review as integral to the constitution’s core framework.

PRINCIPLES OF STATE REGULATION OF THE ACTIVITIES OF BODIES OF THE STATE EXECUTIVE SERVICE AND PRIVATE EXECUTORS

2018 ◽  
Vol 1 (13) ◽  
pp. 69-77
Author(s):  
Mariіa Konstantinovna Kulava
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Social Relations ◽  
State Regulation ◽  
Court Decisions ◽  
Regulatory Requirements ◽  
The Rule Of Law ◽  
State Administration ◽  
Executive System ◽  
The Right

Within the presented article, taking into account already existing achievements of scientists, the concept, the main features of the principles of state administration of the executive system of Ukraine are defined. The principles of activity of executive bodies bodies according to the current legislation of Ukraine are determined. A brief description of the principles is presented, namely: the rule of law, legality, compulsory, independence, justice, impartiality and objectivity, discretion, transparency and openness of executive proceedings and its fixation by technical means, the reasonableness of the time limits for enforcement proceedings, the proportionality of enforcement measures and the amount of claims for decisions, the right to appeal decisions, actions or omissions of state executives, private performers. It is established that in general the principles of executive proceedings in the investigated normative acts are duplicated, in addition to the principles of independence and the right to appeal decisions, actions or inaction of state executives, private performers. The actual vision of the principles of public administration of the executive system of Ukraine is determined. The opinion on the need to supplement the list of principles with the following: the principle of equal competition between state and private performers through the balance between them; the principle of responsibility of the executive system bodies, their officials and private executors for damage caused as a result of violations of regulatory requirements; the principle of introducing effective incentives for voluntary implementation of decisions; the principle of professionalism and competence. Also, within the submitted article, it is stated that the use of the terms “principles” and “principles” in the Laws of Ukraine “On Bodies and Officials Performing Enforcement of Court Decisions and Decisions of Other Bodies”, “On Enforcement Proceedings”, which are adopted simultaneously and regulated, are unjustified, identical social relations.

Non-arbitrariness, rule of law and the ‘margin of appreciation’: Comments on Andreas Follesdal

2021 ◽  
Vol 10 (1) ◽  
pp. 139-150
Author(s):  
GIANLUIGI PALOMBELLA
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Member States ◽  
The Rule Of Law ◽  
Internal Organization ◽  
Positive Law ◽  
Margin Of Appreciation ◽  
Principle Of Legality

AbstractCan citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

scholarly journals European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law

2021 ◽  
pp. 1023263X2110059
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Legal Framework ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Applicable Law ◽  
European Public ◽  
Judicial Protection ◽  
Current Rule ◽  
Academic Debate

The article will examine the challenges that the establishment of the European Public Prosecutor’s Office poses for the rule of law – a question which has been underexplored in the policy and academic debate on the establishment of the EPPO, which focused largely on questions of structure and powers of the EPPO and the battle between intergovernmental and supranational visions of European prosecution. The implications of the finally adopted legal framework on the EPPO on the rule of law will be analysed primarily from the perspective of the rule of law as related to EPPO investigations and prosecutions and their consequences for affected individuals – in terms of legal certainty and foreseeability, protection from executive arbitrariness, effective judicial protection and defence rights. The article will undertake a rule of law audit of the EPPO by focusing on three key elements of its legal architecture – the competence of the EPPO, applicable law and judicial review – and the interaction between EU and national levels of investigation and prosecution that the EPPO Regulation envisages. The analysis will aim to cast light on the current rule of law deficit in a hybrid system of European prosecution located somewhere between co-operation and integration.

Rule of law and the scope of interpretation of legislative provisions in the process of judicial and administrative review. Remarks against the background of the phenomenon of „lawmaking” of administrative courts

2021 ◽  
Vol 2(24) ◽  
pp. 373-387
Author(s):  
Przemysław Wilczyński
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Legal System ◽  
The Rule Of Law ◽  
Basic Criterion ◽  
Administrative Review ◽  
Administrative Courts ◽  
The Republic ◽  
Insight Into

The rule of law, as stipulated in article 7 of the Constitution of the Republic of Poland, is one of the fundamental principles shaping the functioning of public administration in the Republic of Poland. Legality of the functioning of public administration is also accepted as the basic criterion of judicial and administrative review of the actions taken by the administration. However, judgments of administrative courts often go outside the boundaries of findings that could be made based on linguistic interpretation of legislative provisions, by referring to the rules of the legal system, including in cases where no doubts exist with regards to the interpretation of provisions. The aim of this paper is to offer insight into the basis and nature of doubts encountered with regards to the admissibility of the use of non-linguistic interpretation by administrative courts where the use of such interpretation does not appear to be required.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

Judicial Review of Knesset Decisions by the High Court of Justice

1994 ◽  
Vol 28 (1) ◽  
pp. 43-56 ◽  
Author(s):  
Meir Shamgar
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Limited Range ◽  
Democratic Regime ◽  
High Court ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Subject

Some fifteen years ago, an address on the subject of judicial review of the actions of the Knesset would have been extremely short and quite familiar to English jurists. Our practice was basically the same as in England: the Parliament is sovereign, its laws inviolate, and its inner proceedings immune from review.Beginning with two decisions in the early 1980s, Flato-Sharon and Sarid, the Court has gradually recognized the justiciability of a limited range of Knesset decisions. While the precise level of review varies according to the type of decision at issue, the Court's review has been motivated in all cases by the need to preserve the rule of law and the integrity of our democratic regime.

A PROPÓSITO DEL ORIGEN Y EVOLUCIÓN DEL RÉGIME ADMINISTRATIF

2010 ◽  
pp. 767-785
Author(s):  
JESÚS LEGUINA VILLA
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
The State ◽  
Point Of View ◽  
The Rule Of Law ◽  
Public Rights ◽  
Statutory Power ◽  
Administrative Courts ◽  
Ancien Régime ◽  
Principle Of Legality

El Derecho Administrativo es un producto propio y específico del constitucionalismo nacido tras la ruptura revolucionaria con el Antiguo Régimen, que resultará profundamente condicionado por las circunstancias sociopolíticas del país, Francia, donde nació. El Régimen Administrativo del Estado de Derecho se conforma a partir del principio de legalidad, de la potestad reglamentaria, de las libertades públicas y los derechos públicos subjetivos, de la responsabilidad de la Administración y del control a través de la jurisdicción contencioso-administrativa. Administrazio Zuzenbidea konstituzionalismoaren berezko produktua espezifikoa da, Frantziako Iraultzak Erregimen Zaharrarekin apurtu ostean sortua eta herrialde horren egoera soziopolitikoak sakon baldintzatua. Zuzenbide Estatuaren Administrazio Araubideak osatzeko hauek guztiak hartzen dira abiapuntu: legezkotasun-printzipioa, arauzko ahala, askatasun publikoak eta eskubide publiko subjektiboak, Administrazioaren erantzukizuna eta administrazio-auziarekiko jurisdikzioaren bidez egiten den kontrola. Administrative Law is a product typical and specific of the constitutionalism born after the revolutionary break-off with the Ancien Regime, which was deeply conditioned by the sociopolitical circumstances of the State, France, where it was born. The Administrative Regime of the Rule of Law was made up from the point of view of the principle of legality, the statutory power, public freedoms and subjective public rights, the liability by the Administration and the review by means of the contentious administrative courts.

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis.

2021 ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Judicial Independence ◽  
The Rule Of Law ◽  
European Dimension

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis is not a typical celebratory book offered to the dedicatee for an academic jubilee. The studies offered to Professor Mirosław Wyrzykowski present the readers with essays analysing the most pressing problems of modern constitutionalism in its European dimension. The primary themes of the book are topics dear to Wyrzykowski: the rule of law, human rights, the crooked paths of European constitutionalism, and last, but not least, one that binds them all: judicial independence and judicial review, as well as the role of the courts in upkeeping the rule of law.

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