scholarly journals The Foundations of the Duty to Give Reasons and a Normative Reconstruction

2020 ◽  
pp. 299-322
Author(s):  
Joana Mendes
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Critical Assessment ◽  
The Law ◽  
Normative Reconstruction

Despite operating in highly constrained legal environments, executive actors may act in a constitutive capacity. This observation prompts a critical assessment of the role of procedural principles in EU administrative law. As norms of conduct deployed by executive bodies during the process of implementing norms, procedural principles may have legal dimensions that, while constitutionally relevant, may not come to the fore in judicial review. The chapter develops this argument with regard to the multifaceted character of the duty to give reasons. It argues that the duty to give reasons ought to ensure the constitutional embeddedness of the constitutive action of EU executive bodies. Such role is consistent both with the original relevance of the duty to give reasons to the law of integration (in the context of the European Coal and Steel Community) and with the current EU constitutional framework. The latter justifies reinstituting the original constitutional function of the duty to give reasons, irrespective of its current scope in the context of judicial review.

Legalism and English Administrative Law: Comment on Sterett

1992 ◽  
Vol 17 (01) ◽  
pp. 89-100 ◽  
Author(s):  
David Feldman ◽  
Mark Gould
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Recent Issue ◽  
Review Procedure ◽  
The Law ◽  
1960S And 1970S ◽  
The 1960S ◽  
Law Commission ◽  
The Way

In a recent issue of this journal (Volume 15, Number 4, Fall 1990), Susan Sterett examined the role of the Law Commission in the development of English administrative law. She suggested that the Commission mimicked a “peak association” and adopted an “idiom of legalism” in order to justify its reform proposals. This comment disagrees with Sterett on three grounds. First, the role and constitutional position of the Commission is far more complex than Sterett suggests, and this affects the way in which the Commission works. Second, judges and academic lawyers were central to the reform of substantive principles of judicial review in the 1960s and 1970s, making it unnecessary for the Law Commission to act in this field. Finally, it is wrong to ignore the fact that much administrative law occurs outside the judicial review procedure.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

2021 ◽  
pp. 41-72
Author(s):  
Angela Ferrari Zumbini
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Affairs ◽  
Main Theme ◽  
Administrative Procedure ◽  
Administrative Action ◽  
General Principles Of Law ◽  
Liberal Approach ◽  
The Right

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

10. Administrative Law:

2016 ◽  
Author(s):  
Richard Clements
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Natural Justice ◽  
Locus Standi ◽  
Public Body ◽  
Chapter Deal ◽  
The Law ◽  
The Right

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions; diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic and suggestions on further reading. This chapter is about judicial review. This is the means by which the citizen can use the courts to ensure that a public body obeys the law. The questions in the chapter deal with issues such as the erratic development of administrative law; the procedure to apply for judicial review; the right to apply (locus standi), procedural ultra vires; natural justice; and substantive ultra vires.

scholarly journals Administrative Law, Judicial Deference, and the Charter

2014 ◽  
Vol 23 (2) ◽  
pp. 19 ◽  
Author(s):  
Matthew Lewans
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Legitimate Authority ◽  
The Law

The doctrine of judicial deference has been a touchstone in Canadian administrative law for thirty-five years. Put simply, the doctrine recognizes that administrative officials have legitimate authority to interpret the law, which means that judicial review is warranted only if an administrative decision is demonstrably unfair or unreasonable. While the tide of deference has ebbed and flowed over this period, most administrative decisions these days are assessed according to a standard of reasonableness instead of correctness.

Samuel Smith and Judicial Review of Policy Interpretation: A Middle Way in the Law and Policy Divide

2020 ◽  
Vol 32 (3) ◽  
pp. 577-587
Author(s):  
Samuel Ruiz-Tagle
Keyword(s):  
Judicial Review ◽  
Planning System ◽  
Distinctive Character ◽  
Policy Interpretation ◽  
Middle Way ◽  
Law And Policy ◽  
The Law ◽  
Uk Supreme Court ◽  
The Uk

Abstract This analysis explores new developments in judicial review of planning policy interpretation. It shows how the nature of policy, often contextual and judgment-dependent, has led the UK Supreme Court to rethink the standard of review applicable to this issue. By considering the recent decision in Samuel Smith as part of a trilogy of cases—including Tesco Stores and Hopkins Homes—this analysis reveals a change in judicial attitudes, away from the expansive judicial supervision upheld in Tesco Stores. Furthermore, this study reflects on how this change is related to two wider ideas. The first is the Court’s understanding of the law and policy divide in the planning field, whilst the second is to do with a pragmatic stance regarding the purpose of the planning system and the institutional role of the courts in it. Finally, this analysis shows how the new approach emphasises the distinctive character of policy in the planning context.

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.

The Historical Foundations of Judicial Review in the United Kingdom

2021 ◽  
pp. 193-230
Author(s):  
Conor McCormick
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Historical Analysis ◽  
Administrative Law ◽  
First Century ◽  
Fin De Siecle ◽  
The United Kingdom ◽  
Twenty First Century ◽  
Administrative Actions

This chapter analyses judicially developed standards for reviewing administrative actions in the United Kingdom between 1890 and 1910. By exploring the context, reach, types, and frequency of judicial review during that timeframe—fin de siècle—this historical analysis reveals both significant changes and significant continuities by comparison with twenty-first century standards. The chapter concentrates in particular on reported cases which undermine the Diceyan claim that administrative law did not exist in the United Kingdom during this timeframe; and reflects on the inconsistencies that pervaded that body of law. It concludes that some judges tended to deploy concepts which had the effect of restraining administrative actions, whereas other judicial constructs tended to facilitate the administrative arrangements contested in court. As such, it recommends that the role of judicial review at this time should be characterized with this duality of purpose firmly in mind.

Understanding Administrative Law in the Common Law World

2021 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Administrative Action ◽  
The Core ◽  
The Common ◽  
The Law ◽  
Pluralist Approach ◽  
Core Features

This book has three goals: to enhance understanding of administrative law; to guide future development of the law; and to justify the core features of the contemporary law of judicial review of administrative action. Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland and New Zealand, Dr Daly develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review, everything from the rule against bias to jurisdictional error to the application of judicial review principles to non-statutory bodies. Addressing this wide array of subjects in detail, Dr Daly demonstrates how his pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance academics’, students’, practitioners’ and judges’ understanding of administrative law. Furthermore, this pluralist approach is capable of guiding the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. Dr Daly closes by arguing that his values-based, pluralist framework supports the legitimacy of contemporary administrative law which although sometimes called into question in fact facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

Jurisdictional Error as Conceptual Totem

2019 ◽  
Author(s):  
Leighton McDonald
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Executive Action ◽  
Error Recognition ◽  
The Law ◽  
Obvious Relation

Jurisdictional error is pivotal but not, in any substantive sense, ‘central’. It is pivotal because it marks important boundaries (drawn by reference to other ideas) in the law of judicial review of executive action. This pivotal but not central role has enabled jurisdictional error to function as a ‘conceptual totem’, emblematic of a determinedly ‘statutory approach’ to the articulation and elaboration of administrative law norms. After elaborating these claims, the article goes on to doubt the constitutional case for the retention of the statutory approach that, in recent years, has come to characterise the Australian approach to jurisdictional error. Recognition of the totemic function of jurisdictional error, it is concluded, is a helpful first step in better understanding and analysing administrative law norms which bear no obvious relation to statute.

8. Abuse of Discretion II

2016 ◽  
Author(s):  
Mark Elliott ◽  
Jason Varuhas
Keyword(s):  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Variable Intensity ◽  
English Law ◽  
Proportionality Test

This chapter examines grounds of judicial review that are substantive in two senses: it reduces the range of substantive options open to a decision-maker, or it involves judicial examination of the quality of the reasons for the decision itself, rather than the quality of the process adopted by the decision-maker. The chapter first considers the doctrine of reasonableness or rationality in administrative law before discussing the doctrine of proportionality and the notion of judicial deference in relation to variable intensity review. It also explores the role of the proportionality test in English law and the question of whether English courts are heading towards jettisoning the reasonableness doctrine in favour of utilizing proportionality in all relevant cases.

Sign in / Sign up

Export Citation Format

Share Document