1887

n Acta Juridica - The democratic necessity of administrative justice : the constitutional context

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Abstract

Public law governs the boundaries between the respective realms of the citizen and the citizen's government. The calibration of the balance between those two realms is one of the most complex in all of legal philosophy and political theory. It has grave consequences for democracy which, to a large extent, it defines.


Until recently in the United Kingdom the subject of public law was divided into constitutional and administrative law. The purpose of constitutional law was to define the powers of the state. Administrative law then had a subsidiary purpose, which was to regulate the exercise of those constitutionally-defined powers by ensuring that public officials acted within their scope. Most of the attention of administrative law was therefore absorbed in the interpretation of the power - express or implied - conferred upon administrators. Two questions predominated: Should the grant of wide discretion be construed literally or purposively? And to what extent should a general duty of fairness or reasonableness be subsumed within the grant of official power?
Initially, these questions were resolved within the overriding aim of enabling administrators to further the public interest. Public power should, it was said, self-evidently be exercised in the cause of the interest of the public as a whole, and not in the interest of any individual or group of individuals alone. Private concerns were not to obstruct that overall mission.
As administrative law developed, another aim asserted itself, most often described as the promotion of 'good public administration'. This notion shifted the perspective of administrative law in the direction of the consumer - those persons affected by official decisions. However, the qualities of 'the good' in public administration were not grounded in any clear theoretical or constitutional basis. Later the courts articulated the 'grounds' of administrative law - lawfulness, fairness and reasonableness. These more specific criteria were useful as guides to the content of 'good administration', but they were still considered duties of the administrator to provide, rather than rights of the individual to receive.

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/content/ju_jur/2006/1/EJC52684
2006-01-01
2016-12-09
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