Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0023
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter is concerned with internal administrative supervision, that is, supervision and control of public administrative action within the European Union public administration itself. The idea ...
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This chapter is concerned with internal administrative supervision, that is, supervision and control of public administrative action within the European Union public administration itself. The idea of internal supervision in the EU administration considered holistically needs, however, some explication. It includes narrowly internal supervision in the sense of supervision within the main Union administrative organ, the Commission. It also includes administrative supervision of European agencies and even networks, and is thus somewhat less obviously internal. In addition, it encompasses administrative supervision of Member State administrations. The latter are, without doubt, a part of the integrated European administration but, there too, their supervision may, at first, appear not to be really internal although it should, in this chapter's view, be understood as such.Less
This chapter is concerned with internal administrative supervision, that is, supervision and control of public administrative action within the European Union public administration itself. The idea of internal supervision in the EU administration considered holistically needs, however, some explication. It includes narrowly internal supervision in the sense of supervision within the main Union administrative organ, the Commission. It also includes administrative supervision of European agencies and even networks, and is thus somewhat less obviously internal. In addition, it encompasses administrative supervision of Member State administrations. The latter are, without doubt, a part of the integrated European administration but, there too, their supervision may, at first, appear not to be really internal although it should, in this chapter's view, be understood as such.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0025
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Judicial supervision, generally occurring subsequently both to administrative action and to measures of administrative supervision, is designed to correct errors which have already occurred and to ...
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Judicial supervision, generally occurring subsequently both to administrative action and to measures of administrative supervision, is designed to correct errors which have already occurred and to provide compensation for losses resulting from them. It is in this sense quite different from both administrative and political supervision of the administration which can occur both ex ante and ex post. This chapter discusses the various avenues for judicial review of EU administrative action in detail, assessing first direct legal actions for annulment and failure to act, before turning to incidental forms of review. The focus then shifts to the remedy of damages and concludes with an overview of interim relief proceedings.Less
Judicial supervision, generally occurring subsequently both to administrative action and to measures of administrative supervision, is designed to correct errors which have already occurred and to provide compensation for losses resulting from them. It is in this sense quite different from both administrative and political supervision of the administration which can occur both ex ante and ex post. This chapter discusses the various avenues for judicial review of EU administrative action in detail, assessing first direct legal actions for annulment and failure to act, before turning to incidental forms of review. The focus then shifts to the remedy of damages and concludes with an overview of interim relief proceedings.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0007
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter examines the overarching principles which frame the EU's administrative law. It looks at the meta-principles of democracy, the rule of law, and the protection of fundamental rights. This ...
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This chapter examines the overarching principles which frame the EU's administrative law. It looks at the meta-principles of democracy, the rule of law, and the protection of fundamental rights. This is followed in more detail by a discussion of principles of very particular relevance for administrative action, such as transparency, legal certainty, and legitimate expectations, as well as the rights of defence and the principles underpinning the concept of good administration.Less
This chapter examines the overarching principles which frame the EU's administrative law. It looks at the meta-principles of democracy, the rule of law, and the protection of fundamental rights. This is followed in more detail by a discussion of principles of very particular relevance for administrative action, such as transparency, legal certainty, and legitimate expectations, as well as the rights of defence and the principles underpinning the concept of good administration.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0005
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative ...
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This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative action and the procedures, prerequisites, and processes of supervision which apply to them. Such sources arise from European Treaty provisions, and legislative, delegated, and implementing measures. To a certain, albeit limited, degree they may also arise from customary public international law or international agreements. Further, in certain contexts, they may arise from national law. The chapter presents such sources with special emphasis on their connection with administrative action in the EU.Less
This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative action and the procedures, prerequisites, and processes of supervision which apply to them. Such sources arise from European Treaty provisions, and legislative, delegated, and implementing measures. To a certain, albeit limited, degree they may also arise from customary public international law or international agreements. Further, in certain contexts, they may arise from national law. The chapter presents such sources with special emphasis on their connection with administrative action in the EU.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0018
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter covers ‘unilateral’ determinations, not only those of European Union institutions and bodies, but also decisions by Member States when implementing European law through their ...
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This chapter covers ‘unilateral’ determinations, not only those of European Union institutions and bodies, but also decisions by Member States when implementing European law through their administrative apparatuses. Such determinations comprise the full range of regulatory, distributive, supervisory, and enforcing decisions by administrative officials addressed both to individuals and to other public authorities on European or national level. Questions of their validity, revocation, and reversal, and the relationship between unilateral determinations and negotiated outcomes, in the form of agreements, are central to the legal understanding of the operation of the legal-administrative system of the Union. A particular matter of keen interest here is that of the transterritorial effect of Member State decisions within the framework of EU administrative law.Less
This chapter covers ‘unilateral’ determinations, not only those of European Union institutions and bodies, but also decisions by Member States when implementing European law through their administrative apparatuses. Such determinations comprise the full range of regulatory, distributive, supervisory, and enforcing decisions by administrative officials addressed both to individuals and to other public authorities on European or national level. Questions of their validity, revocation, and reversal, and the relationship between unilateral determinations and negotiated outcomes, in the form of agreements, are central to the legal understanding of the operation of the legal-administrative system of the Union. A particular matter of keen interest here is that of the transterritorial effect of Member State decisions within the framework of EU administrative law.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0021
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter analyses the purposes and functions of supervision and enforcement of administrative activity generally in the context of the European Union. The first section presents some background ...
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This chapter analyses the purposes and functions of supervision and enforcement of administrative activity generally in the context of the European Union. The first section presents some background reflection on the conditions applying to such activity in this specific context. The discussion covers interdisciplinary perspectives, supervision and enforcement in EU administrative law generally, accountability, and supervision through specialized and independent authorities. The second section addresses broad methodological approaches that apply to different categories of supervision.Less
This chapter analyses the purposes and functions of supervision and enforcement of administrative activity generally in the context of the European Union. The first section presents some background reflection on the conditions applying to such activity in this specific context. The discussion covers interdisciplinary perspectives, supervision and enforcement in EU administrative law generally, accountability, and supervision through specialized and independent authorities. The second section addresses broad methodological approaches that apply to different categories of supervision.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0020
- Subject:
- Law, EU Law, Constitutional and Administrative Law
Not all actions of European Union or Member State authorities implementing European law are decisions ‘intended to produce legal effects’ in the sense of Article 263(1) TFEU (Article 230(1) EC) or of ...
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Not all actions of European Union or Member State authorities implementing European law are decisions ‘intended to produce legal effects’ in the sense of Article 263(1) TFEU (Article 230(1) EC) or of the equivalent Member State legal provisions. Frequently, administrative action is explicitly or implicitly designed to have factual, as opposed to legal, consequences or effects. Such ‘factual conduct’ or ‘factual acts’, as these phenomena of administrative action might be called in practice, in order to distinguish them from formal, legally effective measures, do not occur in a legal vacuum in the Union context, any more than they do in the context of national legal systems. Rules and principles of European administrative law frame cases of factual conduct, establishing both criteria for their legality and the consequences of the illegality, especially in situations involving violations of rights. This chapter discusses various categories of factual acts and factual conduct.Less
Not all actions of European Union or Member State authorities implementing European law are decisions ‘intended to produce legal effects’ in the sense of Article 263(1) TFEU (Article 230(1) EC) or of the equivalent Member State legal provisions. Frequently, administrative action is explicitly or implicitly designed to have factual, as opposed to legal, consequences or effects. Such ‘factual conduct’ or ‘factual acts’, as these phenomena of administrative action might be called in practice, in order to distinguish them from formal, legally effective measures, do not occur in a legal vacuum in the Union context, any more than they do in the context of national legal systems. Rules and principles of European administrative law frame cases of factual conduct, establishing both criteria for their legality and the consequences of the illegality, especially in situations involving violations of rights. This chapter discusses various categories of factual acts and factual conduct.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0013
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter deals with the rules and principles governing the substance of administrative decision-making, focusing on the scope of the administration's influence over the substance of decisions. In ...
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This chapter deals with the rules and principles governing the substance of administrative decision-making, focusing on the scope of the administration's influence over the substance of decisions. In many instances, the European administration has been allocated a discretion or a margin of appreciation linked to its perceived expertise, or to its political role in the decision-making process. In other instances the relevant law, the application of which is entrusted to the administrative authorities, is more restrictive and determinative of the decision-making outcome. It is shown that such categories are far from absolute, and the boundaries between them not impermeable. Indeed, the scope for appreciation and the exercise of a discretion by the administration is rather to be seen as being on a sliding scale. That scope is relevant not only as regards the range of policy considerations which the administration can pursue or take into account, and its freedom of movement in doing so, but also for the degree to which the European courts are willing to engage with the substance of administrative action when supervising these in the context of judicial review.Less
This chapter deals with the rules and principles governing the substance of administrative decision-making, focusing on the scope of the administration's influence over the substance of decisions. In many instances, the European administration has been allocated a discretion or a margin of appreciation linked to its perceived expertise, or to its political role in the decision-making process. In other instances the relevant law, the application of which is entrusted to the administrative authorities, is more restrictive and determinative of the decision-making outcome. It is shown that such categories are far from absolute, and the boundaries between them not impermeable. Indeed, the scope for appreciation and the exercise of a discretion by the administration is rather to be seen as being on a sliding scale. That scope is relevant not only as regards the range of policy considerations which the administration can pursue or take into account, and its freedom of movement in doing so, but also for the degree to which the European courts are willing to engage with the substance of administrative action when supervising these in the context of judicial review.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0022
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter details the legal framework for measures and methodologies of enforcement. Enforcement is considered essentially as an activity undertaken by the administration. It implies that legal ...
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This chapter details the legal framework for measures and methodologies of enforcement. Enforcement is considered essentially as an activity undertaken by the administration. It implies that legal precepts or administrative decisions are carried through to their conclusion, and that behavioural demands imposed on individuals or organizations typically external to the public administration are in fact met. The need for enforcement, seen this way, logically implies that the mere existence of rights and obligations, without measures capable of ensuring that they are realized, would call into question the very purpose of a system under the rule of law. This view reflects, indeed, the often asserted proposition that without sanctions there is, strictly speaking, no system of law. Without needing to subscribe unqualifiedly to that proposition, it is clear that the functionality of a complex and pluralistic system of government based on law, as the EU, would be severely restricted without the capacity for and means of enforcement of rules and decisions.Less
This chapter details the legal framework for measures and methodologies of enforcement. Enforcement is considered essentially as an activity undertaken by the administration. It implies that legal precepts or administrative decisions are carried through to their conclusion, and that behavioural demands imposed on individuals or organizations typically external to the public administration are in fact met. The need for enforcement, seen this way, logically implies that the mere existence of rights and obligations, without measures capable of ensuring that they are realized, would call into question the very purpose of a system under the rule of law. This view reflects, indeed, the often asserted proposition that without sanctions there is, strictly speaking, no system of law. Without needing to subscribe unqualifiedly to that proposition, it is clear that the functionality of a complex and pluralistic system of government based on law, as the EU, would be severely restricted without the capacity for and means of enforcement of rules and decisions.
T R S Allan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199670024
- eISBN:
- 9780191749414
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670024.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political ...
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This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.Less
This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.
T.R.S. Allan
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199267880
- eISBN:
- 9780191707728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199267880.003.0007
- Subject:
- Law, Constitutional and Administrative Law
The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a ...
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The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a fundamental division of sovereignty. The common law, which today holds the existence of a free and democratic society as its basic tenet, must be viewed as built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts. This chapter discusses judicial review of administrative action, the moral foundations of H. L. A. Hart's ‘rule of recognition’, the evolution of the rule of recognition citing human rights and European law, and the constitutional limits of parliamentary sovereignty.Less
The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a fundamental division of sovereignty. The common law, which today holds the existence of a free and democratic society as its basic tenet, must be viewed as built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts. This chapter discusses judicial review of administrative action, the moral foundations of H. L. A. Hart's ‘rule of recognition’, the evolution of the rule of recognition citing human rights and European law, and the constitutional limits of parliamentary sovereignty.
Shihab al-Din Ahmad ibn Idris al-Qarafi al-Maliki
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780300191158
- eISBN:
- 9780300227567
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300191158.001.0001
- Subject:
- Law, Legal History
This book is the first and much-needed English translation of a thirteenth-century text that shaped the development of Islamic law in the late middle ages. Scholars of Islamic law can find few ...
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This book is the first and much-needed English translation of a thirteenth-century text that shaped the development of Islamic law in the late middle ages. Scholars of Islamic law can find few English language translations of foundational Islamic legal texts, particularly from the understudied Mamluk era. This edition addresses this gap, finally making the great Muslim jurist Shihab al-Din al-Qarafi's seminal work available to a wider audience. The book's examination of the distinctions among judicial rulings, which were final and unassailable; legal opinions, which were advisory and not binding; and administrative actions, which were binding but amenable to subsequent revision, remained standard for centuries and are still actively debated today.Less
This book is the first and much-needed English translation of a thirteenth-century text that shaped the development of Islamic law in the late middle ages. Scholars of Islamic law can find few English language translations of foundational Islamic legal texts, particularly from the understudied Mamluk era. This edition addresses this gap, finally making the great Muslim jurist Shihab al-Din al-Qarafi's seminal work available to a wider audience. The book's examination of the distinctions among judicial rulings, which were final and unassailable; legal opinions, which were advisory and not binding; and administrative actions, which were binding but amenable to subsequent revision, remained standard for centuries and are still actively debated today.
Conor Gearty
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199287222
- eISBN:
- 9780191700422
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287222.003.0007
- Subject:
- Law, Human Rights and Immigration
This chapter deals with how the aspiration of proportionate intrusion has manifested itself in the case law. It starts by considering the ...
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This chapter deals with how the aspiration of proportionate intrusion has manifested itself in the case law. It starts by considering the reception of the Act in areas already covered by legislation for which it was not obvious that the Human Rights Act was designed. It discusses the impact of the measure on judicial review of administrative action. Then it explores how the common law has coped with the dramatic legislative challenge to its culture. Lastly, it considers the problem of retrospectivity, an issue which has provided the first major crisis for the judicial branch in its interpretation of the Act. In all of these areas, the Human Rights Act has had to be managed to enable its best features to be revealed while preventing the measure from getting out of control.Less
This chapter deals with how the aspiration of proportionate intrusion has manifested itself in the case law. It starts by considering the reception of the Act in areas already covered by legislation for which it was not obvious that the Human Rights Act was designed. It discusses the impact of the measure on judicial review of administrative action. Then it explores how the common law has coped with the dramatic legislative challenge to its culture. Lastly, it considers the problem of retrospectivity, an issue which has provided the first major crisis for the judicial branch in its interpretation of the Act. In all of these areas, the Human Rights Act has had to be managed to enable its best features to be revealed while preventing the measure from getting out of control.
G. Edward White
- Published in print:
- 2019
- Published Online:
- May 2019
- ISBN:
- 9780190634940
- eISBN:
- 9780190940348
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190634940.003.0004
- Subject:
- Law, Legal History, Constitutional and Administrative Law
This chapter gives an account of the growth of administrative agencies in the first half of the twentieth century, particularly after 1930. The chapter emphasizes the comparatively novel status of ...
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This chapter gives an account of the growth of administrative agencies in the first half of the twentieth century, particularly after 1930. The chapter emphasizes the comparatively novel status of agencies as governing institutions in America, and the legal and constitutional issues their emergence posed for courts, states legislatures, and Congress.Less
This chapter gives an account of the growth of administrative agencies in the first half of the twentieth century, particularly after 1930. The chapter emphasizes the comparatively novel status of agencies as governing institutions in America, and the legal and constitutional issues their emergence posed for courts, states legislatures, and Congress.
Giacinto della Cananea
- Published in print:
- 2016
- Published Online:
- November 2016
- ISBN:
- 9780198788386
- eISBN:
- 9780191830303
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198788386.003.0008
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
This chapter identifies the administrative due process of law from a conceptual point of view. It places due process in the context of concepts that are used by administrators, judges, and ...
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This chapter identifies the administrative due process of law from a conceptual point of view. It places due process in the context of concepts that are used by administrators, judges, and arbitrators in order to achieve a twofold purpose. First, for the sake of conceptual clarity, whilst seeking to set the framework for our consideration of what due process and other concepts with which it is often associated have in common, its distinctive traits will be pointed out. Second, it argues that the administrative due process of law is not only distinct from those other concepts. It also provides a set of indicators of procedural fairness and propriety that are partially distinct from the indicators that are used to assess both the legality of administrative action and (non)denial of justice, and are more rigorous for assessing the conduct of public authorities than the generic and loose concept of non-arbitrariness.Less
This chapter identifies the administrative due process of law from a conceptual point of view. It places due process in the context of concepts that are used by administrators, judges, and arbitrators in order to achieve a twofold purpose. First, for the sake of conceptual clarity, whilst seeking to set the framework for our consideration of what due process and other concepts with which it is often associated have in common, its distinctive traits will be pointed out. Second, it argues that the administrative due process of law is not only distinct from those other concepts. It also provides a set of indicators of procedural fairness and propriety that are partially distinct from the indicators that are used to assess both the legality of administrative action and (non)denial of justice, and are more rigorous for assessing the conduct of public authorities than the generic and loose concept of non-arbitrariness.
