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I·CONnect

Blog of the International Journal of Constitutional Law

I·CON Volume 17, Issue 3: Editorial

On My Way Out – Advice to Young Scholars VI: WeakPoint, On the Uses and Abuses of PowerPoint

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the sixth instalment and regards that staple of academic life: PowerPoint.

There is a concept in Jewish law called “Fencing.” (Seyag). It is a prophylactic; a new prohibition is decreed, which is not, in and of itself, biblically based but is introduced in the interest of protecting people from inadvertently committing an infraction of a divine commandment or in order to prevent people from entering into a danger zone of temptation. Here is a trivial example: the recitation of one’s nightly prayers can (and should) take place during the night. Night time lasts, surely, until daybreak – just before dawn. One o’clock in the morning is surely still night time. The Rabbis decreed a “Fence” and fixed a deadline of midnight. “A man”, they reasoned, “will return home, and say to himself: I’ll eat a little bit, and drink a little bit, and sleep a little bit – and then recite my prayers. [After all, I have all night ahead of me]. He ends up sleeping all night and missing his nightly prayers.”

I have imposed on myself a Fence: No PowerPoint at all (for that matter, no FaceBook, Twitter or Instagram). It is an extreme (im)position, which I am not suggesting others should adopt. However, I am advocating a far more prudent and discerning use of PowerPoint.

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Published on September 19, 2019
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ICON’s Latest Issue: Table of Contents

Volume 17 Issue 3

Table of Contents

Editorial

Articles

Bosko Tripkovic, The morality of foreign law

Critical Review of Governance

Ngoc Son Bui, Constitutional amendment in Laos

Farrah Ahmed, Richard Albert and Adam Perry, Judging constitutional conventions

Symposium: Weak-form Review in Comparative Perspective

Mark Tushnet, Weak-form review: An introduction

Swati Jhaveri, Interrogating dialogic theories of judicial review

Po Jen Yap and Francis Chung, Statutory rights and de facto constitutional supremacy in Hong Kong?

Kent Roach, Dialogic remedies

Scott Stephenson, Is the Commonwealth’s approach to rights constitutionalism exportable?

Rosalind Dixon, The forms, functions, and varieties of weak(ened) judicial review

Stephen Gardbaum, Weak-form review in comparative perspective: A reply

ICON: Debate!

Hèctor López Bofill, Hubris, constitutionalism, and “the indissoluble unity of the Spanish nation”: The repression of Catalan secessionist referenda in Spanish constitutional law

Antonio Bar, Hubris, constitutionalism, and “the indissoluble unity of the Spanish nation”: A reply to Hèctor López Bofill

Hèctor López Bofill, Hubris, constitutionalism, and “the indissoluble unity of the Spanish nation”: A rejoinder to Antonio Bar

Review Essay

Jan Komárek, Rethinking constitutionalism and democracy . . .  again? Review of Dieter Grimm. The Constitution of European Democracy; Athanasios Psygkas. From the “Democratic Deficit” to a “Democratic Surplus”: Constructing Administrative Democracy in Europe; Turkuler Isiksel. Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State.

Book Reviews

Note from the I.CON Editors

Katalin Kelemen. Judicial Dissent in European Constitutional Courts. A Comparative and Legal Perspective (Eszter Bodnár)

Christine Landfried (ed.). Judicial Power: How Constitutional Courts Affect Political Transformations (Johann Laux)

Julieta Lemaitre Ripoll.El Estado siempre llega tarde: La Reconstrucción de la Vida Cotidiana después de la Guerra (Jorge González-Jácome)

Olivier Beaud & Cécile Guérin-Bargues.L’état d’urgence, Une étude constitutionnelle, historique et critique (Rui Miguel Pereira)

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Published on September 18, 2019
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Showcase–New Directions in Administrative Law Theory: The Pardon Paradox


[Editor’s Note: This is the fifth entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Adam Perry, University of Oxford

Almost every constitution in the world confers a power to pardon.  Pardon powers are found in the constitutions of old states and new states, Western states and non-Western states, states with a Christian tradition and states without one. Pardon powers are part of the constitutions of states as diverse as France, Indonesia, Peru, Russia, the United Kingdom, and the United States.

Pardon powers share several features. First, the exercise of the power has the result of lifting or lessening criminal liability. Second, the power achieves this result not by changing the law, but by setting it aside in a particular case. Third, the power is held by a branch of government other than the judiciary – the executive, normally, or the legislature, less commonly. Finally, in its traditional mould, a pardon power is wholly arbitrary. Its use is unreviewable and unconstrained. (For recent departures from this traditional form of the pardon power, see my post here.)

So understood, pardon powers seem to conflict with two of the most basic principles of constitutionalism. Contrary to the separation of powers, a pardon power gives to a branch of government other than the judiciary a role in determining criminal liability in particular cases. Contrary to the rule of law, a pardon power is traditionally neither controlled by nor ruled by law. 

Hence the *pardon paradox*: one of the most common constitutional power is at odds with some of the most fundamental constitutional principles. Pardon powers are everywhere but seem to properly belong nowhere. I argue that the paradox has a solution. Appearances notwithstanding, pardon powers threaten neither the separation of powers nor the rule of law. My argument has three steps.

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Published on September 17, 2019
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What’s New in Public Law


Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The European Court of Human Rights issued notice to the government of Poland on the basis of a complaint brought by an applicant company about the appointment of one judge in particular to the Constitutional Court which examined its case, and is now the second application to be communicated to the Government of Poland raising an issue related to changes in the judiciary. Communication available here.
  2. The Jammu and Kashmir People’s Conference filed a plea, one of many brought by political parties from the region, in the Supreme Court of India challenging the constitutionality of the Union Government’s abrogation of provisions in the Indian Constitution which guaranteed Jammu and Kashmir autonomy.
  3. The Supreme Court of the United States ruled that the Trump administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country. Order available here.
  4. The First Division, Inner House, Court of Session of Scotland ruled that UK Prime Minister Boris Johnson’s prorogation of Parliament was unlawful. Judgment here.
  5. South African President Cyril Ramaphosa has made Zukisa Tshiqi and Steven Majiedt his first appointments to the Constitutional Court of South Africa.
  6. The High Court of Kenya ruled that a high school in Nairobi had violated the petitioner’s constitutional right to freedom of religion by asking her to shave her dreadlocks, which she claimed was required by her Rastafarian faith.
  7. The Constitutional Court of Zambia adjourned the hearing of an application by the Law Association of Zambia for an injunction to prevent Parliament from proceeding to receive submissions and debate a set of controversial amendments to the Constitution. 
  8. The Supreme Court of India agreed to hear public interest litigation seeking directions to set up community kitchens in order to address reports of increasing deaths across the country on account of malnutrition.

In the News

  1. The Equality Court of South Africa held that the gratuitous display of the country’s apartheid era flag constitutes, inter alia, ‘hate speech’ and ‘harassment’ as understood in the provisions of the Equality Act, 2000. Judgment here.
  2. The Advocate General advised the Supreme Court of the Netherlands to uphold the Hague Court of Appeal’s 2015 decision in the Urgenda case where it concluded that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government had acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. Commentary on the 2015 case can be found here.
  3. The High Court of Belfast dismissed claims that a no-deal Brexit and the imposition of a hard border would damage the Northern Ireland peace process.
  4. A judge of the Quebec Superior Court struck down a clause that required patients’ natural deaths to be “reasonably foreseeable” in a federal assisted-dying law the as unconstitutional.
  5. The Lower House in Myanmar rejected a motion to sign the International Covenant on Civil and Political Rights (ICCPR) arguing that it might endanger national security.
  6. The Parliament of Ukraine passed legislation that allows a sitting president to be impeached if they break the law.
  7. The government in Zambia is set to go ahead with a set of changes to the constitution which, among others, could remove parliament’s oversight over debt.

New Scholarship

  1. Ciara Fitzpatrick, Gráinne McKeever &Mark Simpson, Conditionality, discretion and TH Marshall’s ‘right to welfare’ 42(2) Journal of Social Welfare and Family Law 1 (2019) (using empirical findings to illustrate the lack of fulfilment of social rights in the UK).
  2. Tarunabh Khaitan, Political insurance for the (relative) poor: How liberal constitutionalism could resist plutocracy, Global Constitutionalism (2019) (sketching the salience of gross economic inequality to modern constitutional and political theory and suggesting a set of legal and political constitutional measures to address it.)
  3. Stephan Stohler, Reconstructing Rights: Courts, Parties, and Equality Rights in India, South Africa, and the United States (2019) (drawing on legislative debates, legal briefs, and judicial opinions from High Courts in India, South Africa, and the United States to develop a theory of the judicial role in equality cases).
  4. Dragoljub Popovic, Comparative Government (2019) (providing a comparative study of decision-making mechanisms and lines of evolution, as well as parliamentary, presidential, semi-presidential, power sharing and supra-national level forms of government).
  5. Massimo La Torre, Leone Niglia, and Mart Susi (eds.), The Quest for Rights: Ideal and Normative Dimensions (2019) (bringing together a group of scholars explore the salience of the work of Robert Alexy in areas like the use of proportionality in conflicts of rights and the normativity of human rights).
  6. Maria Mousmouti, Designing Effective Legislation (2019) (advancing the idea that legislative effectiveness is the result of complex ‘mechanics’ in the conceptualization, design and drafting of four elements inherent in every law: purpose, content, context and result).
  7. W. Gregory Voss, Obstacles to Transatlantic Harmonization of Data Privacy Law in Context, 2 Journal of Law, Technology and Policy (2019) (discussing the challenges in the creation of a harmonized data privacy law in the United States and Europe).
  8. Alin Fumurescu, Compromise and the American Founding: The Quest for the People’s Two Bodies (2019) (discussing the analytic categories of the ‘people’ and ‘compromise’ as understood in seventeenth-century England and France, and providing an account of their salience during key moments of the founding of the United States.)
  9. Roberto Gargarella, Review of Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy, 44 Revista Derecho del Estado (2019) (reviewing and providing critical analysis of the volume by Ginsburg and Huq).
  10. Maxime St-Hilaire et Joanna Baron, Introductory Essay: The Rule of Law as the Rule of Artificial Reason, 92 Supreme Court Law Review (2019) (reviews several theories of the rule of law, and drawing attention to the role of the legal profession, particularly judges, in sustaining the values of legality and the rule of law)

Call for Papers and Announcements

  1. The Rehnquist Center at the University of Arizona invites abstracts the third annual National Conference of Constitutional Law Scholars on March 20-21, 2020 by emailing 1- or 2-page abstracts to Andrew Coan (acoan@email.arizona.edu) by 1 October 2019.
  2. Democracy Reporting International invites scholars in the field of the rule of law in the EU to contribute to its pool of experts who can contribute to research and drafting analytical pieces on rule of law-related issues in EU members states.
  3. The Hungarian Helsinki Committee released a report on the deteriorating rule of law situation in Hungary, with a focus on areas like the undermining of the independence of the judiciary and curbing of media freedoms.
  4. The Faculty of Law McGill University invites applications for the 2020 O’Brien Graduate Fellowships.
  5. The Ludwig-Maximilians-Universitat in Muenchen invites applications for 15 LMU Research Fellowships for outstanding early career researchers.
  6. The Centre for International Law at the National University of Singapore invites applications for a Research Associate to join its International Dispute and Resolution Programme.
  7. The International Center for Law and Religion Studies at the Brigham Young Law School invites abstracts for a project (culminating in a workshop) titled Human Dignity and Human Rights – Christian Perspectives and Practices: A Focus on Constitutional and International Law.

Elsewhere Online

  1. Tarunabh Khaitan, On Coups, Constitutional Shamelessness, and Lingchi, UK Constitutional Law Blog
  2. Aziz Huq, Judicial Norms and Judicial Capacity, Balkinization
  3. Nic Cheeseman, Lungu erodes Zambia’s democracy, Mail & Guardian
  4. Timothy Endicott, Don’t Panic, UK Constitutional Law Blog
  5. V. Venkatesan, Petitions challenging abrogation of Article 370: Apex court on test, Frontline
  6. James C. Hathaway, Acquiescing in Refoulement, Verfassungsblog
  7. Paul Craig, Prorogation: Three Assumptions, Oxford Human Rights Hub Blog
  8. Alan Greene, Miller 2, Non-justiciability and the Danger of Legal Black Holes, UK Constitutional Law Blog
  9. Corey Robin, Clarence Thomas’s Radical Vision of Race, The New Yorker
  10. Gautam Bhatia, The Absentee Constitutional Court, The Hindu
  11. Ibrahim AL-bakri Nyei, Liberia’s long-awaited constitutional referendum: Debate on alternatives to by-elections, ConstitutionNet
  12. Cem Tecimer, Recognizing Court-Packing, Verfassungsblog
  13. Franny Rabkin, Why Justice Stevan Majiedt aspires to be like Pius Langa, Mail & Guardian
  14. Kriszta Kovács and Gábor Attila Tóth, The Age of Constitutional Barbarism, Verfassungsblog
  15. Simona Florescu, The importance of time in child protection decisions; a commentary on Haddad v Spain, Strasbourg Observers
  16. Garrett Epps, The Supreme Court Is Not Well. And the People Know It, The Atlantic
  17. Robert Hazell and Nabila Roukhamieh-Mckinna, In defence of the Fixed-term Parliaments Act, The Constitution Unit
  18. David R. Cameron, After passage of Benn bill and Johnson’s sixth defeat, House of Commons is prorogued, Yale MacMillan Centre
  19. Han-Ru Zhou, Ford and Irwin Toy 30 Years Later: A Conversation with Justice de Montigny, Constitutional Forum
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Published on September 16, 2019
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Special Undergraduate Series–The Misplaced Objections Against the Transgender Persons (Protection of Rights) Bill, 2019 (India)


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


–Anmol Jain, B.A., LL.B. Student (Hons.), National Law University, Jodhpur, India

Last month, the Lower House of the Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 to ‘provide for protection of rights of transgender persons and their welfare.’ This comes after a series of efforts by the legislature in the form of multiple lapsed bills and the long journey that the judiciary has traveled to establish the rights of transgender and inter-sex people. However, the Bill has faced multi-pronged criticism from civil society. In this post, I seek to counter such misplaced criticisms–a post that coincides with the first anniversary of the Indian Supreme Court’s historic decision decriminalizing same-sex relationships.

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Published on September 15, 2019
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Call for Papers–European Journal of International Law–Inequalities in International Law: The EJIL Symposium 2021


International law in the UN Charter, the Universal Declaration of Human Rights, and other foundational treaties and conventions of the multilateral system entails a premise (and promise) of equal rights, the right to self-determination, and the fundamental equality of human beings. However, during the last 10 years and in the wake of the 2008 financial crisis inequality has once again moved to the centre of attention of a number of disciplines, most noteworthy perhaps economics, as well as politics.

We issue this Call for Papers to invite submissions reflecting on the ways that international law – its practice and scholarship – relates to inequality. We chose the plural – inequalities – as we do not intend, from the outset, to narrow the Symposium’s scope to particular forms or actualizations of inequality. Inequalities span access to, or enjoyment of, public resources, and/or state duties to ensure equalities of opportunity regardless of gender, religion, nationality, birth, political or other ideological convictions, status, among others. While the discussion on inequality and international law has been historically concerned with North/South disparities and the quest for equal distribution among states, recent decades have seen a rise in inequality within countries in affluent and weaker economies. Other characteristics of inequality today include the extreme concentration of income at the top and the shrinkage of the middle class in advanced economies. Inequalities persist also in the external relationships of states with other actors (state and non-state) in the international system – as enduring legacies of colonialism in economic development and in post-conflict peacebuilding; as ongoing asymmetries in the efforts to achieve accountability and international justice for victims of internationally wrongful acts; as well as through contested modes of governance over the world’s environment, global commons, and natural resources.  

The interplay between international law and inequality and the special trends related to inequality today invite further research and reflection. Developments such as the rising inequality within countries, the possible decline in inter-country inequality alongside economic growth in emerging market and developing economies challenge our existing legal framing and approaches to the problem of inequality and call for further analysis of the relationship between these trends and international legal principles, doctrines and institutions.

Thus, we invite contributions that conceptualize and problematize the notion of inequality and that examine its doctrinal significance and its usefulness and appropriateness as an analytical concept or as a common concern in international law. We further call for papers that address questions regarding empirical, quantitative and qualitative assessments of inequality within and across societies and states and that assess international law and institutions as cause as well as remedy to inequality. We welcome doctrinal, historiographical, genealogical and sociological engagements with past and present regimes, initiatives, institutions, and instruments and their relationship with inequality as well as biographical engagements with scholars and practitioners who in their work paid particular attention to the question of inequality in international law.

Finally, we welcome engagements with our responsibility as international lawyers. How do we practise international law ethically in light of persisting material inequality, racism and sexism in the world, in our societies, governments and workplaces. What visions or utopias might guide and invigorate our practices? To what extent can we identify persistent inequalities that also suffuse the ‘invisible college’ of international lawyers, and what can be done within international law from both academic inquiry and norms of professional practice?

The call is not restricted to a particular subfield of international law. We would be happy to receive proposals from all fields of international law, including the following themes:

Human Rights: Papers may interrogate the capacity of (social and economic) rights to remedy inequality, or engage with the thesis that (particular conceptions of) human rights detract from social justice concerns.

International Economic Law: Papers may address the question whether international economic law should and how it might allow for global redistribution or contribute to a transformation of political economy that reduces material inequality instead of enhancing it. Further clarification is needed how international economic law (together with transnational and national law) furthers the accumulation of wealth and capital as well as the concentration of corporate power. Contributions may assess calls for a new NIEO or a new Bretton Woods and evaluate them in light of historical experience and in the context of present geopolitical developments. Contributions may also confront the changing face of international economic law – particularly its deepening intersections with human rights law, international environmental law, climate law, among others – and assess how the international economic system engages, perpetuates, or redresses both latent and patent inequalities faced by individuals, groups, peoples, small nations such as low-lying island states, among others.

Sustainable Development Goals: 10 years to go until, by 2030, the SDGs shall be achieved, it may be a good time for an evaluation of their impact so far – not only as concerns the realization of targets, in particular of SDG 10 “Reduced Inequalities” – but also the effects of this governance framework on international law doctrine and the practice of governmental and non-governmental institutions. Can the polycentric approach to SDG governance truly address inequalities, when SDGs are articulated in the grey areas between hard law and soft law?

Migration Law: Given that extreme poverty and global inequality in living conditions are major reasons for global migration, does migration law adequately take account of these causes? Current government policies of exclusion and deterrence not only raise questions as to their conformity with international law, but call into doubt foundational normative justifications of global and national political order. Are instruments such as the Global Compact on Migration and the New York Declaration sufficient to eventually harden into multilateral or regional treaties recognizing shared norms in addressing both protections for migrants as well as the pressures on and opportunities open for receiving populations?

Climate Law: From its inception climate change law has had and still has to come to terms with various inequalities – including inequalities as concerns individual states’ contributions to climate change as well as inequalities as to how communities will be affected by climate change. How does climate law address these inequalities; how should it address them in order not only to effectively contain climate change, but to do so in an equitable manner?

After ‘After Hegemony’: The emergence of  Brazil, Russia, India, China, and South Africa (the BRICS) as a new hub of power in international relations, destabilizing processes in Europe, most evident in Brexit, and the decline of the US as the world’s hegemonic power have triggered new approaches to international law making in recent years.  These new approaches include a shift away from multilateralism toward bilateralism, regionalism and other forms of global governance. These processes are related to inequality in their cause and effects: Can we tie the growing unrest over inequality among different political groups worldwide to the turn away from existing international legal institutions? How are these ideological sensibilities and new forms of mobilization related to new modalities of international regulation? How will these new modalities influence global inequality in the future? 

We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 500 words. Abstracts should not only set out the prospective papers for inclusion in the symposium; they should also concisely formulate the questions addressed as well as the method and materials employed in the proposed research. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.

The deadline for the abstracts is 1 November 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 29 May 2020. We are considering a workshop in June 2020, at a location to be determined, to discuss the drafts. Funding towards the travel expenses of some participants may be available. Final drafts will be expected by 2 November 2020.  Abstracts, accompanied by a recent CV in pdf format, are to be sent to EJIL’s Managing Editor at anny.bremner {at} eui(.)eu by 1 November 2019.

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Published on September 14, 2019
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Showcase–New Directions in Administrative Law Theory: The Prerogative, The Third Source, and Administrative Law Theory

[Editor’s Note: This is the fourth entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Max Harris, University of Oxford

Administrative lawyers and administrative law theorists ignore the prerogative and the third source at their peril. Wherever the exact boundaries of administrative law theory are drawn, the prerogative and third source are in principle open to judicial review, and so an understanding of the prerogative and the third source is tangentially relevant to understanding judicial review, which is unquestionably part of administrative law.

More importantly, though, ignoring the relationship between administrative law and the prerogative and third source may result in important doctrinal and theoretical questions remaining unanswered. For example, in ordinary ‘illegality’ cases, the focus is on whether actions of the executive are unlawful because they go beyond powers granted to the executive by statute. But courts have repeatedly failed to consider whether the prerogative and third source might provide alternative bases for authorisation of executive action where a statute does not authorise executive action. It is not implausible to think that had courts and scholars paid greater attention to the relationship between administrative law and the prerogative and third source, there may well have been more consideration of this question.

There is, therefore, a need for administrative lawyers and administrative law theorists to have a sound understanding of the prerogative and the third source.

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Published on September 13, 2019
Author:          Filed under: Analysis
 

Showcase–New Directions in Administrative Law Theory: Maitland’s Challenge


[Editor’s Note: This is the third entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Jacob Weinrib, Queen’s Faculty of Law

In the final years of the nineteenth century, FW Maitland looked to “the real practical working of English public law”[1] and observed a transformation: “The new wants of a new age have been met in a new manner.”[2]  The transformation consisted in the legislative delegation of an ever-increasing array of powers to an ever-increasing array of agencies.   In this new age, Maitland insisted that any adequate theory of public law would have to offer a way of thinking about the kinds of functions that administrative agencies should perform.   Because he had no such theory to offer, he apologized to his students for his “very poor lecture” on administrative law, and admonished them not to overlook the increasing significance of administrative agencies and their functions even “though we can do little more than barely state their existence.”[3]

If we are to move beyond the mere description of the functions that administrative agencies perform, we must come to grips with a series of fundamental questions raised by the transformation that Maitland observed.  What is the connection between public law, with its concern for the relationship between sovereign and subject, and the various functions that administrative agencies perform?  Are these functions to be regarded simply as the residue of past legislative decisions?  Or do these functions respond to some underlying (set of) moral problem(s) that public law presents?  In short, what is the moral significance of administrative functions?  These questions form Maitland’s challenge.  This challenge is made all the more pressing by, on the one hand, the proliferation of administrative functions that has occurred since Maitland’s day and, on the other, persistent calls to roll back the administrative state.         

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Published on September 12, 2019
Author:          Filed under: Analysis
 

Showcase–New Directions in Administrative Law Theory: Systematically Studying Review of Reason-Giving


[Editor’s Note: This is the second entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Joanna Bell, University of Cambridge

In a thought-provoking blogpost published earlier this year, Richard Kirkham & Elizabeth O’Loughlin made a case for greater systematic study of administrative law issues. Academic commentary on administrative law, the authors argued, often focuses on the subject’s normative dimensions. For Kirkham & O’Loughlin, however, normative research is too often ‘based on highly selective, senior court centred and sometimes inaccurate accounts of real practice.’ The solution, for the authors, lies in ‘greater take-up of deep systematic studies into discrete areas of judicial decision-making.’ There is, in other words, a need for more in-depth analysis of how administrative law issues are dealt with by the courts in particular contexts. The aim is to build up understanding of the day-to-day realities of administrative law adjudication so that commentary more broadly can be better informed. 

This short blog post has two aims. The first is to discuss an example which helps to bolster Kirkham & O’Loughlin’s argument for systematic study of administrative law issues. The second is to offer some reflections on the difficulties of undertaking research of this kind.

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Published on September 11, 2019
Author:          Filed under: Analysis
 

Showcase–New Directions in Administrative Law Theory: Administrative Law and Democracy


[Editor’s Note: This is the first entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]


–Hasan Dindjer, University of Oxford

Decisions by public authorities are often thought to possess a democratic imprimatur which properly insulates them from certain kinds of interference by courts. Executive and administrative agencies are frequently thought of, along with the legislature, as an elected or political branch of government. Courts justify deference to them on the grounds that they ‘bear democratic responsibility for […] decisions’[1]  or that ‘in a democracy a person charged with making [certain] assessments […] should be politically responsible for them.’[2]

In the paper on which this piece is based, I ask what kind of democratic imprimatur administrative decision-makers in fact possess, and what implications this might have for courts.

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Published on September 10, 2019
Author:          Filed under: Analysis