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This chapter argues that an inability to provide for legal resilience against restrictive migration laws and policies should not be understood as ‘merely’ a failure of ECHR, EU and constitutional law. Instead, the problem runs much deeper than the country studies seem to suggest. It is claimed that the problem resides in the very legal infrastructure used to further policy goals aimed at limiting migration: administrative law. Administrative law is distinctively well-suited to produce restrictive migration laws, whether enacted by populist or mainstream parties. In an important sense, the three types of legal resilience identified in most country studies – judicial interventions by the ECtHR, CJEU and constitutional courts – signal and legitimize the lack of legal resilience within administrative law itself. Resilience against restrictive migration laws will remain marginal and incidental, the chapter concludes, as long as the legal profession fails to critically examine and challenge the basic features of the legal infrastructure underpinning migration policies: administrative law.
Using numerous topical examples and a clear structure, this third edition textbook provides an accessible, discursive and scholarly treatment of the key contemporary issues in UK public law. Drawing upon their extensive teaching and research experience, Roger Masterman and Colin Murray offer an engaging account of the key topics which make up a constitutional and administrative, or public, law syllabus. Controversial issues and broader debates are highlighted throughout the text, allowing the reader to develop a strong understanding of both the application of key topics in the field and the socio-political context in which the constitution has developed. This fully revised edition includes detailed analysis of recent significant cases, the constitutional implications of the Covid-19 pandemic and a dedicated chapter on the consequences of Brexit.
Using the lens of history, A History of Financial Technology and Regulation illuminates recent changes to the world of finance. With lucid prose and the help of concrete examples, Seth Oranburg helps readers understand the role of technology in finance today, including complex phenomena such as mutual funds, cryptocurrencies, and the stock market itself. Chapters begin with basic principles and historical analogy before describing complex digital-investment strategies and instruments. Readers will also gain an introduction to key concepts in financial regulation, learning how law and regulations prevented some financial crises while perpetuating others. Oranburg concludes with ideas about what's next for finance and how the law should respond. This book will appeal to specialists and nonspecialists alike who are interesting in learning more about business, economics, finance, law, and regulation.
This article explores the making of the State of Syria after the dissolution of the Ottoman Empire. I argue that an event-based approach in global legal history offers a useful perspective for studying the transition from imperial to international and national systems. Drawing on new archival research in France and Saudi Arabia, I focus upon the creation of the 1928 Syrian constitution in the League’s mandate to show the administrative framework of political orders. First, I describe the French administrative logic through the story of the international ‘organic law’. Second, I describe the way the organic law necessitated the Syrian political constitution. The constrained constitutional process resulted in a clash and a compromise about a Muslim president between secularist republicans and exiled, Saudi-related Muslim monarchists. Global history can profit from this approach by rethinking decolonization as administrative reorganization and by focusing on dissenting, non-state actors in state-making.
The American administrative state has, of late, been under siege, attacked on two fronts. The war on one front is somewhat parochial – a pitched battle over US constitutional law. It is waged largely by conservative movement lawyers who view the modern administrative state as an affront to the constitutional separation of powers.
The war on the other front has much greater transnational relevance. This second fight pits defenders of modern bureaucratic governance against those who see public administration as hopelessly inefficient, rigid, and unaccountable. This latter group of critics present themselves as more or less comfortable with the constitutionality of the administrative state – and thus claim to raise only technocratic objections.
As long as their actions are lawful, administrators ought to reinforce the democratic values in their systems of representative government. The reason why is that doing so helps to legitimate policy work as a form of representation: policy work is done on behalf of citizens, and recognizing this integrates policy workers and the state, which itself is born from representation. Institutional designers must not advocate structural choices that compromise the legitimating that representation has for policy work, and they can only craft structures capable of producing democracy administered from values that complement those of the representative governments toward which they direct their proposals. One structure thus cannot fit all political jurisdictions because their representative governments make different trade-offs in accountability and process values. But attending to value complementarity helps to facilitate representation, to legitimate the state, to address the fundamental problem of public administration and to nurture democracy administered.
The book concludes with a brief look at hybrid organizations, international organizations, administrative rulemaking, and the rise of populism with an eye toward how they might be considered in the light of value reinforcement.
In “The Provenance and Protection of Legitimate Expectations” Forsyth argued that English law should protect substantive legitimate expectations. However, he was concerned that too great an expansion of legitimate expectations could lead to incoherence and intuitive decision-making. I argue that recent case law, and Forsyth's analysis, have clarified some of these inconsistencies. Nevertheless, the doctrine of legitimate expectations stands at a crossroads. Should it adopt a rules-based approach and narrow legitimate expectations, or a principled approach that embraces a broader conception? I argue that English law needs both for legitimate expectations effectively to balance legal certainty and substantive equality.
The principle of ne bis in idem is a fundamental right that bars the possibility of a defendant being prosecuted more than once on the basis of the same offence, act or facts. In view of the significance of the ne bis in idem principle for the AFSJ, this chapter offers an account of the sources and elements of that principle. The ne bis in idem principle in the AFSJ has seen spectacular developments over the past two decades. The Van Esbroeck/Zolotukhin line of case law represents a prime example of fruitful substantive judicial dialectics between the two European courts. The case law on the application of the principle to the interaction between administrative, criminal and tax law raises questions, however. The problem encountered here is perhaps not so much one of ne bis in idem, but of the fundamental relationship between criminal and (punitive) administrative law. The developments in the case law suggest that we may not find a clear answer to the question of how the ne bis in idem principle should be applied in the relation between criminal, administrative and tax law until we have a sufficiently clear notion of the precise nature of that relationship.
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 recognized 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.
The advent of recombinant DNA technology in the 1970s led to general concerns about the use of novel biotechnologies and the potential effects on public health and the environment. To assuage those concerns, the Reagan Administration created the Coordinated Framework for the Regulation of Biotechnology. This 1986 policy document avowed that existing health and safety laws could provide adequate regulatory oversight for biotechnology products under a products-based, rather than a process-based, approach and assigned broad federal jurisdiction to the FDA, EPA, and USDA. This chapter examines how novel genome-editing technologies will test the limits of the Coordinated Framework, which is largely limited in scope by older genetic-engineering methods. The chapter analyzes the regulatory status of gene-edited crops and how, under specific circumstances, these crops can escape regulatory oversight due to the Coordinated Framework’s focus on the use of transgenic DNA to carry out the intended genetic manipulations. The chapter explores current regulatory gaps and argues that, in the near future, it will likely be increasingly cumbersome to distinguish between genome-edited crops and naturally occurring crops. The technology, therefore, is likely to challenge the very essence of what constitutes a GMO and extends opportunities to help allay controversies surrounding genetically modified crops.
The present volume contributes to the emerging field of comparative foreign relations law by focusing on how foreign relations law interacts with international law, a topic that has been underexplored in the literature. This concluding chapter reflects on the relationship between these two bodies of law, drawing on examples from this volume and also from The Oxford Handbook of Comparative Foreign Relations Law. It begins by offering a working definition of foreign relations law that is both analytically distinct from international law and useful for comparative analysis. It then explains how foreign relations law and international law have important and often under-appreciated effects on each other, sometimes in ways that are constructive and mutually reinforcing, but at other times in ways that produce potential conflict.
The last decade or so has seen an explosion of scholarship by American law professors on what has become known as administrative constitutionalism. Administrative constitutionalism is a catchphrase for the role of administrative agencies in influencing, creating, and establishing constitutional rules and norms, and governing based on those rules and norms. Though courts traditionally get far more attention in the scholarly literature and the popular imagination, administrative constitutionalism scholars show that administrative agencies have been extremely important participants in American constitutional development. Section I of this essay identifies three different versions of administrative constitutionalism—(1) Engagement with Existing Constitutional Doctrine; (2) Resolving Questions of Statutory Meaning that Implicate Constitutional Questions; and (3) Shadow Administrative Constitutionalism—and provides examples from the scholarly literature to illustrate these distinct manifestations of administrative constitutionalism. Section II of this essay discusses the normative turn in administrative constitutionalism scholarship. Much of this normative literature is implicitly or explicitly premised on the notion that agencies are more likely to pursue progressive goals than are other government actors. Section III of this essay disputes the notion that agency constitutional decision-making is “democratic” and that agencies are naturally inclined to serve progressive goals. Finally, Section IV of this essay notes that scholars who support broad agency autonomy to work out and enforce their own constitutional visions have failed to consider how their work fits in with the economic and political science literature on agency behavior. One can predict, based on that literature, that agencies given broad autonomy under the guise of administrative constitutionalism will primarily be inclined to expand their scope and authority at the expense of countervailing considerations.
Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.
The right to effective judicial protection is driving to a significant evolution of EU administrative law, especially in view of the multijurisdictional nature of the European administrative structure. This Article focuses on gaps in judicial protection arising from mutual recognition in transnational interactions between the administrative authorities of the EU’s Member States. It first sets the ground by examining the ingredients of the equation: The fundamental right to effective judicial protection, the concept and forms of mutual recognition, and the notion of European administrative space. Next, this Article assesses the judicial protection that private parties can obtain from national courts in these transnational scenarios. Procedure, substance, and deference are separately explored here, in order to draw out blind spots and deficiencies, as well as to suggest possible solutions to address at least some of them. This Article ends with a brief summary of the main findings.
A lot has happened to the UK Constitution in the last seven years. We've witnessed the UK's exit from the EU, further devolution to Scotland and Wales, a number of prominent cases by the Supreme Court, two early parliamentary general elections, major governmental defeats and two Prime Ministerial resignations. Alison Young has built on the text of Colin Turpin and Adam Tomkins' earlier edition, keeping their unique historical and contextual approach, whilst bringing the material up to date with more contemporary examples, including references to Brexit, the recent prorogation and Brexit case law, and the Covid-19 pandemic. The book continues to include substantial extracts from parliamentary and other political sources as well as from legislation and case law. It also provides a full yet accessible account of the British constitution at the culmination of a series of dramatic events, on the threshold of possible further constitutional reform.
In 1988, Malaysia’s Constitution was amended to separate the Syariah and civil jurisdictions of the courts. Henceforth, matters involving Syariah (Islamic religious law) would only be litigated in the Syariah courts and not the civil courts. This move proved problematic especially since the Federal Constitution regulates all fundamental rights and liberties – including the right to religious freedom – while religion is regulated by the constituent states. State legislatures are thus empowered to create and punish offences against precepts of Islam. This chapter analyses how common law principles of administrative law have been applied and developed in Malaysia by studying their interaction with the administration of Syariah law. More specifically, it asks: How do the civil courts exercise its powers of judicial review in cases involving Syariah and the exercise of powers by both secular and religious authorities in such cases? It traces the patterns of judicial application and assessment of key administrative law principles such as natural justice, reasonableness, and proportionality and argues that while English precedents continue to be cited, these same precedents are often jettisoned and modified when it conflicts with the political power and primacy of Islamic law.
This concluding chapter aims to bring together the themes explored in the book, and to identify several research contexts that can largely benefit from the collection. Part I offers a birds-eye view of all book chapters, noting the differences in the evolution of the analysed systems’ administrative law. Swati Jhaveri’s five-pronged typology of the public law of common law systems, presented in Chapter 1, is discussed in Part II, which explores several aspects of each of these sub-categories, critically considers their internal logic, and assesses the utility of this typology. Part III aims to provide a tentative explanatory framework for the analysis of the reasons that have led to the different transformation patterns of the administrative law of these systems. Three bodies of social science research that study change but have little to say on legal change are addressed, and supplemented by an application of Donald Horowitz’s four approaches to legal change, which offer explanatory paradigms for legal change over time. This part ends with a proposal of a five-dimensional grid designed to ease the process of defining factors that may have implicated on change. The chapter ends with a discussion of the robustness of the classic classification of legal systems into ‘legal families’ in general and of the common-law family in particular.
The law of judicial review in Scotland both resembles, and is distinctive from, its English counterpart. The grounds of review are largely aligned in the two jurisdictions, but there are substantial differences in the scope and availability of review. Scots judicial review is highly distinctive in being doctrinally centred on confinement to jurisdiction without overt resort to notions of public power. This is shown to result from the way in which judicial review has evolved in Scotland over several centuries. Related to those differences is distinctiveness in the remedies that are available, with no discrete class of public law remedies and no comparative system of prerogative orders or writs. Nevertheless, English law has served as a powerful force of convergence, and recent reforms have seen Scots judicial review increasingly aligned with its English counterpart on procedural matters. This occurred in relation to the rules on standing, and the introduction of both a time limit and a leave stage, neither of which had previously featured in Scots judicial review procedure. Reasons for both resemblance with, and distinctiveness from, English law are considered, it being concluded that neither convergence nor divergence should be adopted for their own sake.
This chapter considers the evolutions in the practice of judicial review in Kenya, and the continued relevance of English law, in the broader context of the role of judicial review in facilitating the attainment of democratic governance. It argues that English law bequeathed to Kenya an ambivalent legacy that continues to shape the exercise of the judicial review power. In theory, law has promised to provide a bulwark against the abuse of governmental power. In practice, however, it has largely served to facilitate authoritarianism. The chapter begins by locating judicial review in the context of governance in colonial and post-colonial Kenya. It then examines the nature and role of judicial review in the Kenya colony, Independent Kenya, and more recently after the promulgation of the Constitution of Kenya 2010.