Public Law as a Whole and Normative Duality: Reclaiming Administrative Insights in Enforcement Review
52 Pages Posted: 3 Sep 2007
Constitutional law and administrative law are both components of public law: the law of relationships between government and those whom it governs. Public law, in turn, comprises a set of rules and principles that establish, sustain, and restrict the activities of governing. By implementing these norms, judicial review serves to maintain the rule of law. However, divergence of legal and political systems has given rise to considerable differences among nations' perceptions of these concepts and the manner in which they are interrelated. While other countries (such as England, Israel and Germany) harmoniously subject all government activities to each rule of constitutional and administrative law, in the US administrative law plays second fiddle, and there is a tendency to review issues involving human liberties under solely constitutional principles (over-constitutionalism). Although the roots of administrative law are in the common law, it is governed today by the APA and similar state enactments. By and large, administrative law applies only to actions attributable to governmental entities serving regulatory functions. One of the biggest problems is the exclusion of criminal enforcement authorities, which are reviewed solely according to the Constitutional Amendments relevant to the criminal process. The article examines the over-constitutionalism phenomenon and suggests a more holistic approach to public law. To this end, I argue that discretionary actions of administrative authorities - including criminal enforcement agencies - should be governed by principles of Normative Duality: constitutional norms and administrative rules. This approach is timely, considering the trend towards internationalization of public law. Potential contributions of the proposition are well demonstrated by the doctrines governing the problems of selective enforcement and racial profiling. These problems, both of which involve unfairly harsh application of the law to a particular person or class, are governed by different constitutional amendments, thereby creating paradoxical results. I show how a level of administrative rules can reconcile the two doctrines, tie them to a more coherent one and help to protect equality and the rule of law.
Keywords: selective enforcement, racial profiling, judicial review, normative duality, constitutional law, administrative law, criminal procedure law, public law
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