scholarly journals La discrétion administrative et la mise en oeuvre d'une politique

2005 ◽  
Vol 19 (1) ◽  
pp. 187-232
Author(s):  
William J. Atkinson
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Decision Making Process ◽  
Discretionary Power ◽  
Administrative Discretion ◽  
The Rule Of Law ◽  
Administrative Policy ◽  
Exercise Of Discretion ◽  
The Impact

This article deals with the relationships between the exercise of administrative discretion and the implementation of a policy. Chapter I defines administrative discretion as a power to make a choice in a particular case. This choice may be technical or political but in both instances relates to the implementation of a policy. The exercise of discretion is also situated within a system under the Rule of Law using H.L.A. Hart's concepts of primary and secondary rules. Chapter II deals with the exercise of discretion in relation to policy. First, if refers to K.C. Davis' model of confining, structuring and checking discretion. To confine discretion is to set the limits within which it should be exercised. To structure it is define the manner by which it is to be exercised notably in opening the decision-making process. To check discretion is to subject the decision to another authority. The next three sections of this chapter are concerned with legislative, regulatory and administrative policy. The first section studies legislative expressions of policy and their impact on the exercise of discretion. Secondly, the question of the choice between regulation and administrative discretion is analysed as is the control over that choice and the nature of regulation over it is decided to adopt it. Finally, the impact of an administrative discretion is seen when attacked by the citizen on the grounds that it fetters discretion, constitutes bias or when relied upon by the citizen. It is seen that in most cases, the administrator may structure his discretionary power in a manner respected by the courts.

International Arbitration as a Tool of Global Governance

2019 ◽  
Author(s):  
Sophie Nappert
Keyword(s):  
Global Governance ◽  
Rule Of Law ◽  
International Arbitration ◽  
The Rule Of Law ◽  
Arbitration Process ◽  
Fact Finding ◽  
Exercise Of Discretion ◽  
The Impact

It has been posited that the international arbitration process carries with it not only fact-finding and lawmaking functions but also a governance function insofar as “arbitrators … can and do engage in autonomous normative action while still adhering to the rule of law.” This contribution explores the role and ambit of the exercise of discretion by international arbitration tribunals and its interplay with the tribunals’ governance function, as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether the use of discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, the effective exercise of that role. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.

Cabinet Immunity in Canada: The Legal Black Hole

2019 ◽  
Vol 63 (2) ◽  
pp. 315-374
Author(s):  
Yan Campagnolo
Keyword(s):  
Decision Making ◽  
Black Hole ◽  
Supreme Court ◽  
Decision Maker ◽  
Rule Of Law ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
Relevant Evidence ◽  
The Supreme Court ◽  
Theory Of Law

Fifteen years ago, in Babcock v. Canada (A.G.), the Supreme Court of Canada held that section 39 of the Canada Evidence Act, which deprives judges of the power to inspect and order the production of Cabinet confidences in litigation, did not offend the rule of law and the provisions of the Constitution. The aim of this article is to revisit this controversial ruling and challenge the Supreme Court’s reasoning. The first part seeks to demonstrate that the Supreme Court adopted a very thin conception of the rule of law in its jurisprudence, a conception which is of limited use as a normative framework to assess the legality of statutory provisions. To that end, the author turns to the thicker theory of law as justification which insists upon the requirements of fairness, transparency, and accountability. Pursuant to the theory of law as justification, an executive decision to exclude relevant evidence in litigation must comply with two requirements: it must be made following a fair decision-making process; and it must be subject to meaningful judicial review. The second part seeks to demonstrate that section 39 does not comply with these requirements. The decision-making process established by Parliament under section 39 is procedurally unfair, in violation of paragraph 2(e) of the Canadian Bill of Rights, because: the identity of the final decision-maker—a minister or the Clerk of the Privy Council—gives rise to a reasonable apprehension of bias; and the decision-maker is not required to properly justify his or her decision to exclude relevant evidence. In addition, section 39 infringes the core, or inherent, jurisdiction and powers of provincial superior courts, in violation of section 96 of the Constitution Act, 1867, as it unduly limits their authority to: control the admissibility of evidence in litigation; and review the legality of executive action. As a result of these flaws, the author argues that section 39 is an unlawful privative clause, a form of legal black hole, which offends the rule of law and the provisions of the Constitution.

scholarly journals On Laws and Their Spirit

2021 ◽  
Vol 7 (1) ◽  
pp. 209-233
Author(s):  
Dragan Šljivić ◽  
Neven Cvetićanin
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Orthodox Christianity ◽  
The West ◽  
The Rule Of Law ◽  
Decision Making Processes ◽  
Divergent Development ◽  
Internal Procedures ◽  
The Impact ◽  
State Separation

Abstract The Orthodox Christianity had in some respects divergent development from that of the West, which also resulted in several conceptions that might have had an impact on the contemporary legal situations in the predominantly Orthodox countries. In this contribution we aim at examining the impact of two major points of divergence. One is the cooperative Church–state separation, that is sometimes dubbed as the symphonia of the two. Another set of concepts that arguably marked Orthodox church’s understanding of the rule of law, at least in its internal procedures, is the principle of leniency (oikonomia). It allows for an interpretation of the laws in the interest of the person to which those are to be applied. We want to investigate which pieces of legislation might have been affected by these considerations and whether contemporary challenges of the legal system in Serbia can be traced to some of the Orthodox doctrines. We conclude that while the contemporary Church–state relationship, as envisioned in the corresponding law of the country, demonstrates many traits that can be traced to the symphonia tradition, there is hardly any evidence that would support the claim that the decision-making processes in Serbian courts were marked by conscious application of the principle of oikonomia.

Administrative Discretion and the Rule of Law

2020 ◽  
pp. 254-299
Author(s):  
Joseph Heath
Keyword(s):  
Decision Making ◽  
Empirical Study ◽  
Rule Of Law ◽  
Executive Branch ◽  
Democratic Legitimacy ◽  
Administrative Discretion ◽  
Public Officials ◽  
Abuse Of Power ◽  
The Rule Of Law

Empirical study of administrative decision-making shows that the power exercised by public officials is only loosely controlled by statutory law. Political theorists have traditionally viewed this discretion quite negatively, as a violation either of the rule of law or the principle of democratic legitimacy. This chapter presents a defense of administrative discretion, on the grounds that it is not just inevitable; it makes an important contribution to the quality of public administration. Both legislative and judicial strategies to reduce administrative discretion have failed or had perverse consequences. The best approach to reducing the potential for abuse of power has been through the development of a “rule of law” culture within the executive branch.

The penholder system and the rule of law in the Security Council decision-making: Setback or improvement?

2019 ◽  
Vol 33 (1) ◽  
pp. 139-156
Author(s):  
Marie-Eve Loiselle
Keyword(s):  
United States ◽  
Decision Making ◽  
United Kingdom ◽  
Rule Of Law ◽  
Security Council ◽  
The United States ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
The United Kingdom ◽  
Council Decision

AbstractThis article analyses the decision-making process of the UN Security Council when it adopts outcome documents, such as resolutions, Presidential statements and press statements. It is commonly assumed that because of their veto power and permanency China, France, Russia, the United Kingdom, and the United States have greater influence than their elected counterparts in shaping those outcomes. In recent years, that control has been strengthened by the penholdership system. Under this practice, one or more members, usually France, the United States or the United Kingdom (P3), take leadership over a situation on the agenda of the Council. When ‘holding the pen’ a member often decides what action the Council should take, then drafts an outcome document that it negotiates with other permanent members before sharing the text with elected members. This article explores the development of this practice and its impact on the respect for the rule of law in the Security Council’s decision-making process. It argues that, while concentrating power in the hands of the P3, hence diminishing transparency and the opportunity for all members to participate in the decision-making of the Council, at the same time the penholdership system also provides an avenue to strengthen elected members’ influence in ways that promote respect for the international rule of law.

Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court

2020 ◽  
Vol 48 (3) ◽  
pp. 382-400
Author(s):  
Ingrid Nielsen ◽  
Zoe Robinson ◽  
Russell Smyth
Keyword(s):  
Decision Making ◽  
Experimental Evidence ◽  
Rule Of Law ◽  
Decision Making Process ◽  
Institutional Legitimacy ◽  
High Court ◽  
The Rule Of Law ◽  
The Public ◽  
Horse Hair ◽  
Diffuse Support

Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.

The ECtHR's Role as a Guardian of Discourse: Safeguarding a Decision-Making Process Based on Well-Established Standards, Practical Rationality, and Facts

2018 ◽  
Vol 31 (2) ◽  
pp. 335-361
Author(s):  
BJÖRNSTJERN BAADE
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Rule Of Law ◽  
Practical Rationality ◽  
European Convention ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Standards

AbstractThis article argues that understanding the role of the European Court of Human Rights (ECtHR or the Court) to be that of a guardian of discourse would respect legitimate disagreement among pluralist democracies, while enabling the Court to safeguard human rights in a meaningful and effective way.From the European Convention on Human Rights (ECHR or the Convention) and the Court's jurisprudence, three basic standards of review can be distilled: First, wherever the Convention's requirements are sufficiently concrete, the Court holds contracting states to well-established standards. Second, when applying broad, abstract and relative Convention rights, the Court safeguards the practical rationality of a democratic decision-making discourse under the rule of law – a substantive review standard that is influenced by procedural factors. Third, the Court also needs to check the facts underlying the case, in order to render its control effective.By setting ‘soft’ precedent in the form of factors that guide future decision-making without entirely prejudging it, and by taking into account second-order reasons concerning its legitimacy to intervene, the Court is acting as a second player in states’ decision-making discourse. Its task is not to replace the institutions originally responsible for taking the decision, but to ensure that they conform to their own role.

Harmonisasi terhadap Peraturan Daerah No. 14 Tahun 2006 tentang Pengelolaan Pelestarian Kawasan Konservasi Laut Daerah dalam Perlindungan Pulau Pariwisata Kabupaten Indramayu

2019 ◽  
Vol 1 (2) ◽  
pp. 142
Author(s):  
Saiful Kholik ◽  
Imas Khaeriyah
Keyword(s):  
Rule Of Law ◽  
Local Governments ◽  
Environmental Law ◽  
Policy Formulation ◽  
Marine Conservation ◽  
Environmental Damage ◽  
Conservation Area ◽  
The Rule Of Law ◽  
The Government ◽  
The Impact

Inconsistency Regional Regulation No.14 of 2006 about marine conservation area of the island of Biawak, Gososng, which Cendekian provides protection but in fact failed to provide protection as evidenced by dredging island sandbar and cendekian conducted PT.Pertamina UP VI Balongan INDRAMAYU. The problem in this research How Formulation Policy Act No. 10 Year 2009 on the Indonesian Tourism with the Indramayu Regional Regulation No. 14 of 2006 regarding marine conservation area of the island of Biawak, Gososng, Cendekian And How Harmonization Act No. 10 of 2009 with the Indramayu Regional Regulation No. 14 of 2006 regarding formulation Act No. 10 Year 2009 on the Indonesian Tourism with the Indramayu Regional Regulation No. 14 of 2006 about marine conservation area of the island of Biawak, Gososng, Cendekian, the purpose of this research to understand and analyze the extent to which policy The findings of the community or field of law local governments about the environmental damage done by companies or individuals are not equal accordance with regional regulations in force, nor the Law in force so that the function of law in society indramayu not fit the mandate to establish a change and justice based Formulation public corporate criminal liability.Inskonsitensi happens to local regulation No.14 of 2006 makes no harmonized with the regulations of each other so that the impact of this inskonsistensi makes the sector particularly environmental law enforcement get uncertainties that result in coastal communities Indramayau.Conclusion Harmonization of regulations of the center and regions delivering the policy formulation of the rule of law area to comply with the regulations above in order to avoid inconsistency, the occurrence of this inconsistency resulted in the rule of law and justice for the indramayu, suggestion that the government should was nearly revise regulations related area, especially the government must dare to take action to give effect to the perpetrator deterrent effect rule-based running as well as possible.

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