As a postscript to these reflections on the rule of law, I would like played their part in striking the balance between private right and And in the judicial review jurisdiction was certainly But the principles which govern their relationships with the law are wholly different. On the one hand, they reveal rule-of-law foundations for some contested . These scholars conceive of the rule of law in terms of distinctive virtues of judicial or .. “[T]here is a difference between ordinary respect and political deference, on the . all those factors which give it power to persuade, if lacking power to control.”. This publication is the result of a collaborative project between JUSTICE, The Bingham Centre for the Rule of Law and The Public Law Project.
Professor Fuller, the fount of much modern thought on the rule of law, identifies eight principles as critical to law: Close Professor Joseph Raz offers an account with a more institutional complexion. An Analytic Framework, Pub. Close 2 coherent or part of a system, 26 26 See, e. Close 3 accompanied by justification, 27 27 See, e. Close and 4 procedurally fair. Close Those elements that pertain to criminal sanctions and processes have less relevance, at least if we focus on those aspects of administrative governance that are not involved in criminal justice.
Likewise, other general virtues, such as compliance with the law, do not distinctively apply to administrative institutions. The conditions under which administrative bodies operate make other elements of the rule of law more central.
The fact that agencies only have authority that has been delegated to them suggests the critical importance of the principle that official action be authorized.
If agency officials are creating law under broad standards, they have obligations to do so in ways that provide adequate notice and justification and also respond to the values of coherence. Finally, to the extent that agencies are engaged in adjudication, the values of procedural fairness apply.
This suggests focus on the following five elements or dimensions of the rule of law. Close Authorization demands a positive law source that grants power to the government to act. A system that complies with authorization is one in which official acts are within the scope of powers authorized, or not ultra vires 2 Notice.
The principles of publicity, clarity, consistency, prospectivity, and stability are among the most important of these values. Close Some of these principles are nearly categorical.
There can be no basis to demand compliance with nonpublic or secret laws. To be action-guiding, laws must be knowable and public. Likewise, a retroactive law cannot purport to guide conduct. Some of these values are a matter of degree; it is more difficult to comply with laws that are unclear, inconsistent, or change so quickly that they cannot reasonably claim to be capable of guiding action. An important strain of thought about the rule of law focuses on the role of justification and argumentation in law.
Justification provides protection against arbitrariness; part of what defines arbitrary action is action that is not justified. A Theory of Legal Reasoning 14—15, 26—28 Law presents itself as a system in which norms fit together. Here the rule of law joins company with the most basic elements of due process, though it can be more demanding. Rule-of-Law Principles for Administrative Governance The question to ask now—with aid from Professor Strauss—is how we can specify these general rule-of-law principles in the context of administrative governance.
In what ways are these principles applied in our administrative law? In what way do they ground arguments for an account of that law? This Part takes on that task organized around the five dimensions of the rule of law just discussed. Authorization Authorization is a central principle of the rule of law and also a central occupation of administrative law.
Close Within our system of limited government, with a Constitution creating a government of only enumerated powers, an administrative agency only has those powers Congress confers upon it. Close Administrative law thus must provide an account of which officials may exercise delegated statutory power and how the scope of that power is to be judged. These principles share a common conception of the value of independent legal judgment for administrative officials and for courts.
To be clear, the critical issue is not what occurs when one agency exercises powers delegated to another agency. What power does the President have to legally bind the discretion of, for example, the Secretary of Transportation, the Administrator of the Environmental Protection Agency, or the members of the Securities Exchange Commission? Professor Strauss is the leading contemporary defender of the view that when Congress imposes duties and grants discretion to offices or agencies, those duties and that discretion are personal to the officeholder.
The President in Administrative Law, 75 Geo. Strauss, Was There a Baby in the Bathwater? This position has a long history. Office and Powers —, at 94— 5th rev. For other explorations, see, e. Sunstein, Reinventing the Regulatory State, 62 U. Close This position has both a constitutional and statutory dimension.
Others have joined this debate. For arguments that the President has authority to exercise powers delegated to other executive officials, see Elena Kagan, Presidential Administration, Harv.
Judicial review - Wikipedia
For arguments that the President generally lacks statutory authority to direct the exercise of power granted to other officials, see, e. Percival, Presidential Management of the Administrative State: Close The focus on decisional allocation thus maintains that Congress, in delegating authority, may make a meaningful choice among delegates, including granting power to the President, but also to other officials. Office and Powers —, at 80 4th rev.
Close While this position on decisional allocation has been widely debated in constitutional and statutory terms, it can be seen as grounded in a distinctive set of commitments about the prospects for government under law. Close in which the officeholder receives urgings from superiors and others. Such a delegate should generally grant respectful consideration to the views of superiors, but the duty and power of decision are ultimately her own. This insistence on decisional allocation thus can be seen as grounded in a pragmatic principle that there is a greater chance of decision in accordance with the law when officials view their duties and powers as personal, requiring their independent judgment, and not subject to supplanting by others.
This idea can be put in terms of the definition of role for administrative actors.
An Administrative Jurisprudence: The Rule of Law in the Administrative State - Columbia Law Review
When the legal role of those delegated statutory power is defined as requiring their independent judgment, the specter of role-based compliance up a chain of command is diminished. Institutionally, this role specification spreads accountability through the bureaucracy.
All those with legally delegated authority must exercise their own independent legal judgment; as a result, administrative action will represent the views of many actors, and accountability cannot be confined to the officials at the peak of the institutional hierarchy.
These ideas about the foundation for decisional allocation might be formulated in terms of the following rule-of-law principle for administration: Legal authorization and duty is relative to officeholders, not an impersonal authorization to government as a whole. Understanding this legal allocation—that the discretion and duty is personal to the official—clarifies how an official delegated with statutory power is to understand prodding from a President or his immediate advisors.
The President, then, must persuade the official. Close nor that many of them may be fired by the President at will for failing to do so. Nor does it deny that there are relevant differences between the weight of presidential priorities for executive and independent agencies. While this position augments the place of disagreement within the administration, the prospect for disagreement provides an indication and assurance that independent judgment, typically from multiple individuals, has been exercised.
Viewing obligations as personal to the officeholder opens up a prospect for legal accountability within hierarchical institutions foreclosed by glossing over or denying this distinction. Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, judges in the United Kingdom do not have the power to strike down primary legislation.
However, since the United Kingdom became a member of the European Union there has been tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the Court of Justice of the European Union the power of judicial review. Administrative acts[ edit ] Most modern legal systems allow the courts to review administrative acts individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit. In most systems, this also includes review of secondary legislation legally enforceable rules of general applicability adopted by administrative bodies.
Some countries notably France and Germany have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration.
In other countries including the United States and United Kingdomjudicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts such as the Administrative Court within the High Court of England and Wales. The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts which are the general trial courtssome are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims which, despite its name, is not technically part of the federal judicial branch.
It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions such as a complaint to the authority itself must be fulfilled. In most countries, the courts apply special procedures in administrative cases. Primary legislation[ edit ] There are three broad approaches to judicial review of the constitutionality of primary legislation —that is, laws passed directly by an elected legislature.
No review by any courts[ edit ] Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty.
Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been established in the case of Marbury v. Madisonwhich was argued before the Supreme Court in A similar system was also adopted in Australia.