Ethical and Constitutional Foundations

2021 ◽  
pp. 11-22
Author(s):  
Amichai Cohen ◽  
David Zlotogorski
Keyword(s):  
General Principle ◽  
Just War ◽  
Administrative Law ◽  
Political Control ◽  
Historical Sources ◽  
Principle Of Proportionality

This chapter begins by tracing the historical sources of the principle of proportionality since antiquity. It then presents three possible justifications for this principle. First, the chapter discusses the Just War tradition of proportionality. It then moves on to explain why a utilitarian or rational view of IHL would also support the principle of proportionality. Next, the chapter discusses a justification for the principle of proportionality under the theory of IHL as a mode of societal and political control. The last part of the chapter places the discussion of proportionality in IHL in the wider context of the principle of proportionality as a general principle in constitutional and administrative law.

scholarly journals The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

2020 ◽  
Vol 13 (2) ◽  
pp. 55-86
Author(s):  
Luis Arroyo Jiménez ◽  
Gabriel Doménech Pascual
Keyword(s):  
Decision Making ◽  
General Principle ◽  
Legal Status ◽  
Case Law ◽  
Administrative Law ◽  
Status Quo ◽  
Eu Law ◽  
National Legislation ◽  
Legitimate Expectations ◽  
The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

scholarly journals The Principle of Proportionality in Comparative Perspective

2007 ◽  
Vol 8 (9) ◽  
pp. 835-869 ◽  
Author(s):  
Margherita Poto
Keyword(s):  
Member State ◽  
Political Institutions ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Legal Order ◽  
Comparative Perspective ◽  
European Identity ◽  
Law System ◽  
Principle Of Proportionality ◽  
The Eu

This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.

The Reasonableness of Proportionality in the Australian Administrative Law Context

2015 ◽  
Vol 43 (1) ◽  
pp. 59-90
Author(s):  
Janina Boughey
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Administrative Law ◽  
High Court ◽  
Administrative Action ◽  
Principle Of Proportionality ◽  
Prevailing View

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

scholarly journals Administrative Law Judges in Fair Housing Enforcement: Attitudes, Case Facts, and Political Control

2012 ◽  
Vol 94 (2) ◽  
pp. 362-378 ◽  
Author(s):  
Nicholas R. Seabrook ◽  
Eric M. Wilk ◽  
Charles M. Lamb
Keyword(s):  
Administrative Law ◽  
Political Control ◽  
Fair Housing

scholarly journals Prinsip Proporsionalitas dalam Pengujian Undang-Undang Terhadap UUD NRI 1945 (Studi Perbandingan di Indonesia dan Jerman)

2021 ◽  
Vol 4 (4) ◽  
pp. 1479
Author(s):  
Irene Angelita Rugian
Keyword(s):  
General Principle ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Narrow Sense ◽  
Legal Research ◽  
Conceptual Approach ◽  
Legal Policy ◽  
Test Norms ◽  
Federal Constitutional ◽  
Principle Of Proportionality

AbstractIn several decisions that have been decided by the Mahkamah Konstitusi, some of the judges considerations only test norms with benchmarks contrary to the UUD NRI 1945 or not? However, MK has not tested the basis of the petition itself, there are limitation of rights, open legal policy, and the real harm felt by the petitioner. Therefore, it is necessary to have a principle of proportionality that can be used by judges to assist in deciding cases related to limiting rights and open legal policy. In order to know the concept of the principle of proportionality, it is necessary to conduct a comparative study between Indonesia and Germany by analyzing the concept and development of this principle. The method used is legal research with a statute approach, a case approach, a comparative approach and a conceptual approach. From the results of these studies, it was found that the principle of proportionality in Germany was well conceptualized and developed rapidly. In fact, this principle has become a general principle in the Germany Federal Constitutional Court. Meanwhile in Indonesia, this principle is still unknown and undeveloped like Germany.Keywords: The Principle of Proportionality; Legitimate Aim; Suitability; Neccesity; Balancing in Narrow Sense.AbstrakDalam beberapa putusan yang telah diputus oleh MK, beberapa pertimbangan hakim hanya menguji norma dengan tolak ukur bertentangan dengan UUD NRI 1945 atau tidak? Namun, MK belum menguji sampai kepada dasar dari permohonan itu sendiri, yaitu pembatasan hak, open legal policy, dan kerugian yang nyata dirasakan oleh pemohon. Maka dari itu, perlu adanya prinsip proporsionalitas yang dapat digunakan para hakim untuk membantu memutus perkara yang berkaitan dengan pembatasan hak dan open legal policy. Agar mengetahui konsep dari prinsip proporsionalitas, maka perlu melakukan studi perbandingan antara Indonesia dan Jerman dengan menganalisis konsep dan perkembangan prinsip tersebut. Metode yang digunakan adalah legal research dengan pendekatan statute approach, case approach, comparative approach dan conceptual appoach. Hasil penelitian ditemukan bahwa prinsip proporsionalitas di Jerman telah terkonsep dengan baik dan berkembang dengan pesat. Bahkan prinsip tersebut telah menjadi prinsip umum dalam Germany Federal Constitutional Court. Sedangkan di Indonesia, prinsip tersebut masih belum dikenal oleh MK. Sehingga, proporsionalitas belum memiliki konsep yang jelas dan tidak berkembang seperti negara Jerman.Kata Kunci: Prinsip Proporsionalitas; Legitimate Aim; Suitability; Neccesity; Balancing in Narrow Sense.

scholarly journals The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

2021 ◽  
pp. 1-32
Author(s):  
Benjamin Joshua Ong
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
General Principle ◽  
Case Law ◽  
Administrative Law ◽  
Decision Making Process ◽  
Rough Approximation ◽  
Executive Decision Making ◽  
The Law

Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognised in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

Constitutional Law, Administrative Law, and Human Rights

2021 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Social History ◽  
Constitutional Law ◽  
Administrative Law ◽  
Public Law ◽  
The European Union ◽  
Historical Sources ◽  
The United Kingdom ◽  
Core Elements ◽  
The Subject

Constitutional Law, Administrative Law, and Human Rights provides an in-depth cross disciplinary introduction to the subject of public law, covering the core elements of a constitutional and administrative law syllabus. In addition, it explores the latest ongoing debates around potential constitutional reforms. The book draws heavily on historical sources and on ideas from political science and political theory as well as legal and social history. It also includes detailed coverage of the UK’s proposed departure from the European Union after the 2016 referendum and the subsequent Miller litigations, as well as the negotiations on the terms of departure. It looks at the polarised positions of ‘soft brexit’ and ‘hard brexit’ and examines what brexit might actually mean for the United Kingdom.

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