Legality, Five Views of the Cathedral
Peter Cane, Peter Lindseth and Herwig Hofmann (eds), Oxford Handbook of Comparative Administrative Law (Oxford University Press, 2019, Forthcoming)
26 Pages Posted: 16 Jan 2019
Date Written: January 13, 2019
This chapter is concerned with the concept of legality, and its role in administrative law. The topic is interesting, because the answer is not obvious. This is not a topic the contours of which have been finely honed by previous intellectual endeavour, such that we all agree on the architectural frame, leaving disagreement to the interstices. To the contrary, ten different authors might write very different chapters if given this editorial brief. What follows is axiomatically my take on the subject, in which five views of the role of legality are examined.
The first two views are foundational, albeit in different senses. Thus, the inquiry begins with consideration as to how far legality may be conceived as foundational in the sense of being the meta-precept for administrative law doctrine. This might seem plausible and/or intellectually attractive, but it is not sustainable. There is, however, good reason to conceive of legality as being foundational in a narrower, albeit important, sense, which is to denote the need for legal authority for any administrative action.
The third and fourth views of the cathedral consider the way in which legality is deployed by way of contradistinction to other administrative law concepts, with implications for the structure of administrative law doctrine and the intensity of review. The respective distinctions are between legality and rationality, and legality and the merits. These dichotomies are explicated and subjected to critical scrutiny.
The fifth and final role played by legality is as a distinct head of judicial review, as evidenced by the principle of legality, which exists in some common law legal systems, and is concerned with the way in which legislation that infringes fundamental rights will be interpreted. The principle is analysed, as is the rationale for the ascription of the nomenclature ‘legality’.
Keywords: legality, rationality, judicial review, meta-principle, foundational
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