scholarly journals Les réactions de la doctrine à la création du droit par les juges en droit administratif

2005 ◽  
Vol 21 (2) ◽  
pp. 277-291
Author(s):  
Pierre Lemieux
Keyword(s):  
Case Law ◽  
Administrative Law ◽  
Public Law ◽  
Individual Rights ◽  
Ideal Model ◽  
Current Case ◽  
Creative Power ◽  
Legal Thinking ◽  
The Law ◽  
Creative Role

This paper surveys the outlook and statements of Quebec and Canadian legal scholars and judges on issues of administrative law. It attempts to determine whether scholarly writings merely describe the existing state of the law, or whether they play a creative role in pointing for the courts the way in which law should develop towards an ideal model. To this end, an assessment is first made of the creative power of judges when interpreting the law and of the reactions of scholars to this. Then, an attempt is made to show affinities between judges' and scholars' outlook in cases where an administrative decision conflicts with individual rights or liberties. The paper concludes that while most public law writing in Canada and Quebec usually reads as a restatement of current case law, recent works show an increasing tendency towards independent, critical legal thinking.

Part V The Analytical Framework of Article 102, 12 General Conclusion

2011 ◽  
Author(s):  
Nazzini Renato
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Analytical Framework ◽  
Current Case ◽  
Eu Competition Law ◽  
The Law ◽  
Normative Foundations ◽  
Main Thread

This concluding chapter retraces the main thread of the reasoning in this book, from the identification of the normative foundations of competition law to the discussion of the objective of EU competition law and Article 102 and the design of the tests to determine whether conduct is abusive and whether one or more undertakings are dominant. The objective, principles, and tests that constitute the legal fabric of Article 102 can be summarized in thirty-four propositions divided into three parts: objectives and general principles; assessment of conduct; and assessment of dominance. The chapter then highlights the main areas where the current case law or enforcement practice is in need of being reviewed. These main areas include the law on conditional rebates, refusal to supply, margin squeeze, tying, discrimination, and exploitative abuses.

1. Introducing constitutions and public law

2019 ◽  
pp. 3-24
Author(s):  
Anne Dennett
Keyword(s):  
Public Administration ◽  
Balance Of Power ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
The Law ◽  
The Uk ◽  
And Control ◽  
The Relationship

This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility and control the power of the state. Indeed, a state's constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK's national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’.

scholarly journals The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

2021 ◽  
pp. 1-32
Author(s):  
Benjamin Joshua Ong
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
General Principle ◽  
Case Law ◽  
Administrative Law ◽  
Decision Making Process ◽  
Rough Approximation ◽  
Executive Decision Making ◽  
The Law

Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognised in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

Constitutional and Administrative Law

2020 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Subject Matter ◽  
Administrative Law ◽  
Public Law ◽  
Writing Style ◽  
The Subject ◽  
Self Test ◽  
The Law

The purpose of this book is to introduce the reader to the fundamental principles and concepts of constitutional and administrative law. It is highly popular with undergraduates for its clear writing style and the ease with which it guides the reader through key principles of public law. This eleventh edition incorporates the significant developments in this ever-changing area of the law. The book also includes a range of useful features to help students get to grips with the subject matter. These include further reading suggestions to support deeper research, a large number of self-test questions to help reinforce knowledge, and chapter summaries and numbered paragraphs to aid navigation and revision. This new edition has been fully updated to cover all the latest developments in constitutional and administrative law, including those relating to devolution and Brexit.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

The Judicial Elaboration of Standards for Public Administrations in France

2021 ◽  
pp. 113-131
Author(s):  
Jérémy Mercier
Keyword(s):  
Public Administration ◽  
Public Services ◽  
Institutional Context ◽  
Case Law ◽  
Administrative Law ◽  
Public Authorities ◽  
Public Power ◽  
The Public ◽  
Creative Role

This chapter underlines how administrative law has taken a much greater significance in France since the period 1890–1910. This period is not only symbolic of a full development of administrative law around the notion of public power (puissance publique) or public service (service public) but also of the ramifications given to the very notion of State and public administration. The chapter deals with different theories (Hauriou, Duguit, etc.) related to a redefinition of the State and public services. It discusses four specific aspects: the institutional context, the case law of the Conseil d’État, the innovative orientations concerning the action of the public authorities, and the creative role of this case law.

1. Introducing constitutions and public law

2021 ◽  
pp. 3-23
Author(s):  
Anne Dennett
Keyword(s):  
Public Administration ◽  
Balance Of Power ◽  
Administrative Law ◽  
Public Law ◽  
The State ◽  
The Law ◽  
The Uk ◽  
And Control ◽  
The Relationship

This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility; and control the power of the state. Indeed, a state’s constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK’s national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’.

15. Challenging Governmental Decisions: The Process

2021 ◽  
pp. 405-427
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Administrative Law ◽  
Public Law ◽  
Family Practitioner ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
Technical Area ◽  
Legal Procedures

This chapter examines the legal procedures an applicant must follow when challenging a government decision and explores how court decisions in this nominally very technical area of administrative law can have profound implications for the meaning in practical terms of such broad constitutional principles as the rule of law and the sovereignty of Parliament. The chapter begins by examining the historical duality with English administrative law of the mechanism through which citizens might question the lawfulness of government action. The chapter then continues to cover the case of Barnard v National Dock Labour Board; the Order 53 reforms; the case of O’Reilly v Mackman (1982); the post-O’Reilly case law; the case of Roy v Kensington and Chelsea and Westminster Family Practitioner Committee; and public law principle as a defence in criminal proceedings.

The Pediatrician's Role in Public Law 94-142

1982 ◽  
Vol 4 (6) ◽  
pp. 191-197
Author(s):  
Gregg F. Wright
Keyword(s):  
Public Schools ◽  
School Districts ◽  
Case Law ◽  
Public Law ◽  
Lessons Learned ◽  
Federal State ◽  
Handicapped Children ◽  
The Law ◽  
State And Local ◽  
Local Levels

In the seven years since it was passed, Public Law 94-142, The Education for All Handicapped Act of 1975, has generated new services for handicapped children and in the process has raised many difficult financial, political, educational, medical, and ethical questions. It has changed the scope of public schools and the personnel within them, and it has changed the expectations of parents, physicians, and educators alike. There is currently much talk of the possible repeal of PL 94-142. This review will emphasize the importance of a pediatric voice in this future. The changes that have come about as a result of PL 94-142 will not easily disappear even if the bill were to be repealed. On the other hand, a strong voice of advocacy for handicapped children will be needed to ensure that the positive lessons learned from PL 94-142 will be continued. PL 94-142 itself, as a law, is only one component of a constellation of surrounding issues affecting handicapped children. One must consider separately the actual provisions of the law, the constitutional and case law on which it was based, the federal regulations that have been published and updated to interpret the law, the state plans formulated by each state to comply with the law and regulations, the funding that may or may not be appropriated at federal, state, and local levels to support the programs, and the actual practices within local school districts attempting to comply (or circumvent) these state requirements.

The Law of the Constitution

1909 ◽  
Vol 3 (3) ◽  
pp. 362-370
Author(s):  
Edmund M. Parker
Keyword(s):  
Nineteenth Century ◽  
Administrative Law ◽  
Public Law ◽  
Administrative Litigation ◽  
Notable Feature ◽  
Seventh Edition ◽  
Nineteenth Century France ◽  
The Law ◽  
Administrative Courts

The seventh edition of Professor Dicey's well-known volume presents, as its most notable feature, an entirely new chapter on the droit administratif. All the previous editions have contained a chapter with this heading, but the doctrines set forth have, within the last half-dozen years, aroused so much adverse criticism that Professor Dicey has reëxamined the whole subject anew and has restated his views in what now constitutes one of the most valuable chapters of a notable book.The study of administrative law, as a branch of public law, has in recent years obtained increased recognition, and with this has come especial interest in the administrative law of France; for in that country the system has obtained its fullest development. There the evolution has been steady and although it has passed through several stages, is not yet completed. From the beginning of the nineteenth century France has had, for the determination of administrative litigation (the contentieux administratif, as it is termed) a system of special courts separate and distinct from the regular courts of the land. Other countries of continental Europe have more recently established similar courts, it is true, but in none of these is the jurisidiction of such courts as extensive as it is in the administrative courts of the French republic.

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