Legality

2020 ◽  
pp. 880-899
Author(s):  
Paul Craig
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Fundamental Rights ◽  
Legal Systems ◽  
The Third ◽  
Critical Scrutiny ◽  
Principle Of Legality ◽  
The Way

This chapter is concerned with the concept of legality, and its role in administrative law. Here, six views of the role of legality are examined. The first two views are foundational, albeit in different senses. Thus, the chapter begins with consideration as to how far legality may be conceived as foundational in the sense of being the meta-precept for administrative law doctrine. The third, fourth, and fifth views of the cathedral consider the way in which legality is deployed by way of contradistinction to other administrative law concepts, with implications for the structure of administrative law doctrine and the intensity of review. The respective distinctions are between legality and rationality, legality and the merits, and legality and policy. These dichotomies are explicated and subjected to critical scrutiny. The sixth and final role played by legality is as a distinct head of judicial review, as evidenced by the principle of legality, which exists in some common law legal systems, and is concerned with the way in which legislation that infringes fundamental rights will be interpreted. The principle is analysed, as is the rationale for the ascription of the nomenclature ‘legality’.

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.

scholarly journals “What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

Fundamina ◽  
2020 ◽  
Vol 26 (2) ◽  
pp. 424-519
Author(s):  
D M Pretorius
Keyword(s):  
South Africa ◽  
South African ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Law Schools ◽  
Constitutional Review ◽  
Historical Processes ◽  
Decision Making Processes

This contribution explores the historical origins and development of judicial review in South Africa, as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of sources chronicling these historical processes. The first part focused mainly on constitutional review, namely the power of the law courts to test the validity of statutes against constitutional criteria. This second part analyses the historical development of administrative law, especially the common-law evolution of judicial review of the decision-making processes of organs of state, and how that process unfolded reciprocally with political shifts in twentieth-century South Africa. There is also a synopsis of the introduction of administrative law as a discrete subject in South African law schools. Finally, this contribution briefly explores historical aspects of the role of interpretation of statutes in the context of administrative law, and briefly touches on special statutory review as distinct from common-law review.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

The Eternal Triangle and Court Politics: Henry VIII, Anne Boleyn, and Sir Thomas Wyatt

1986 ◽  
Vol 18 (4) ◽  
pp. 565-579 ◽  
Author(s):  
Retha M. Warnicke
Keyword(s):  
Henry Viii ◽  
Sovereign Power ◽  
Love Affair ◽  
The Third ◽  
Sir Thomas Wyatt ◽  
Court Politics ◽  
The Way

The opinion of modern scholars is divided about the nature of Anne Boleyn's relationship to Sir Thomas Wyatt, the Tudor poet. On the basis of a few of his verses and three Catholic treatises, some writers have concluded that Anne and he were lovers. In these analyses not enough attention has been paid to the role of Henry VIII, the third member of this alleged lovers' triangle, who guarded his own honor and inquired into that of his wives, before, during, and after their marriages to him. A comment on the way in which the king viewed and defended his honor will be useful to this examination of the evidence customarily accepted as proof of Anne and Wyatt's love affair.A gentleman's honor, as Henry's contemporaries perceived it, was a complicated concept. First and foremost it was assumed that a man's birth and lineage would predispose him to chivalric acts on the battlefield where, in fact, only one cowardly lapse would stain his and his family's reputation forever. Secondly, the concept embodied the notion that it bestowed upon its holder certain social privileges and respect. During Henry's reign, moreover, the “realm and the community of honour” came to be viewed as “identical” with the sovereign power of the king at its head. One result of this “nationalization,” was that the behavior of crown dependants and servants affected the king's good name in both a personal and a public sense, and his ministers took care to do all that was appropriate to his reputation in settling disputes and in negotiating treaties.

Leibniz, Spinoza and the Anti-Cartesian Reaction

2018 ◽  
pp. 13-39
Author(s):  
Alex Tissandier
Keyword(s):  
Sufficient Reason ◽  
Existence Of God ◽  
Main Text ◽  
The Third ◽  
The Way

This chapter looks in detail at the three main engagements with Leibniz in the main text of Deleuze’s Expressionism in Philosophy: Spinoza. The first concerns the role of real definitions and proofs of possibility in arguments for the existence of God. The second concerns the theory of adequation in a logic of ideas. The third concerns mechanism, force and essence in a theory of bodies. The chapter argues that these engagements all share the same form. First, Deleuze locates a similarity between Leibniz and Spinoza in their criticism of a particular Cartesian doctrine. Second, he grounds this criticism in a shared concern for the lack of a sufficient reason operating in Descartes’s philosophy. Third, he nominates expression as the concept best suited to address this lack and fulfil the requirements of sufficient reason. Finally, he shows that the way expression functions in Spinoza’s philosophy is each time superior to Leibniz’s own use of the concept. Despite the priority given to Spinoza in this text, it nevertheless contains our first introduction to various key Leibnizian concepts which will become increasingly important in Deleuze’s later philosophy.

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.

Politicians, Judges, and the Charter

2008 ◽  
Vol 21 (1) ◽  
pp. 227-238
Author(s):  
L.W. Sumner
Keyword(s):  
Judicial Review ◽  
Political System ◽  
Common Law ◽  
Recent Book ◽  
The Political ◽  
Court Decisions ◽  
Democratic Process ◽  
Political Views ◽  
Political Right

The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually (though not invariably) on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important issues about the role of judges in a democratic political system. In his recent book A Common Law Theory of Judicial Review, Wil Waluchow responds to the critics' arguments. This Critical Notice outlines his response and assesses its adequacy.

Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal

2020 ◽  
Vol 10 (3) ◽  
pp. 207-256
Author(s):  
Israel Gilead
Keyword(s):  
Common Law ◽  
Simplified Model ◽  
Duty Of Care ◽  
Natural Evolution ◽  
The Third ◽  
Short Overview ◽  
Canadian Law ◽  
Proposed Model ◽  
Negligence Law

AbstractOver a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 SCC’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

scholarly journals Standards of Judicial Review : Is it Time to Change our Analysis ?

2005 ◽  
Vol 45 (3) ◽  
pp. 541-561
Author(s):  
Julius H. Grey
Keyword(s):  
Functional Analysis ◽  
Judicial Review ◽  
Administrative Law ◽  
Fundamental Rights ◽  
Technical Standards

The notion of a pragmatic and functional analysis has become a mantra in administrative law, producing three technical standards of review, one of which is selected at the start of virtually every case. All technical concepts tend to outlive their utility and, it is suggested that the current one should now be reconsidered. There is no doubt that courts must apply different degrees of judicial deference to various types of decisions. However, just as the old distinction between judicial and administrative acts ceased to be helpful in most matters, without ever totally disappearing, the present categories are losing their utility and, if unmodified, might produce an unduly technical and formalistic system of law. It is, in particular, questionable whether these concepts work well in certain specific fields — in disciplinary law, for example and in disputes involving fundamental rights. The issue of „expertise“ in such matters is far from easy and may often generate injustice.

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