Administrative law in common law countries
Administrative law in common law countries
Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity.
While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). Judicial review of administrative decisions is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency. This difference is vital in appreciating administrative law in common law countries.
The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is unreasonable (under Canadian law, following the rejection of the "Patently Unreasonable" standard by the Supreme Court in Dunsmuir v. New Brunswick), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.
The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.
United States
In the United States, many government agencies are organized under the executive branch of government, although a few are part of the judicial or legislative branches.
In the federal government, the executive branch, led by the president, controls the federal executive departments, which are led by secretaries who are members of the United States Cabinet. The many important independent agencies of the United States government created by statutes enacted by Congress exist outside of the federal executive departments but are still part of the executive branch.
Congress has also created some special judicial bodies known as Article I tribunals to handle some areas of administrative law.
The actions of executive agencies and independent agencies are the main focus of American administrative law. In response to the rapid creation of new independent agencies in the early twentieth century (see discussion below), Congress enacted the Administrative Procedure Act (APA) in 1946. Many of the independent agencies operate as miniature versions of the tripartite federal government, with the authority to "legislate" (through rulemaking; see Federal Register and Code of Federal Regulations), "adjudicate" (through administrative hearings), and to "execute" administrative goals (through agency enforcement personnel). Because the United States Constitution sets no limits on this tripartite authority of administrative agencies, Congress enacted the APA to establish fair administrative law procedures to comply with the constitutional requirements of due process. Agency procedures are drawn from four sources of authority: the APA, organic statutes, agency rules, and informal agency practice.
The American Bar Association's official journal concerning administrative law is the Administrative Law Review, a quarterly publication that is managed and edited by students at the Washington College of Law.
Базалеев Илья
The Parliament of the United Kingdom of Great Britain and Northern Ireland, commonly known as the British Parliament, is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories. It is located in Westminster, London. Parliament alone possesses legislative supremacy and thereby ultimate power over all other political bodies in the UK and its territories. At its head is the Sovereign, Queen Elizabeth II.
The parliament is bicameral, with an upper house, the House of Lords, and a lower house, the House of Commons. The Queen is the third component of the legislature. The House of Lords includes two different types of members: the Lords Spiritual (the senior bishops of the Church of England) and the Lords Temporal (members of the Peerage) whose members are not elected by the population at large, but are appointed by the Sovereign on the advice of the Prime Minister. Prior to the opening of the Supreme Court in October 2009 the House of Lords also performed a judicial role through the Law Lords.
The House of Commons is a democratically elected chamber with elections held at least every five years. The two Houses meet in separate chambers in the Palace of Westminster (commonly known as the Houses of Parliament), in London. By constitutional convention, all government ministers, including the Prime Minister, are members of the House of Commons or, less often, the House of Lords, and are thereby accountable to the respective branches of the legislature.
The Parliament of Great Britain was formed in 1707 following the ratification of the Treaty of Union by both the Parliament of England and Parliament of Scotland passing Acts of Union. However, in practice the parliament was a continuation of the English parliament with the addition of Scottish MPs and peers. Parliament was further enlarged by the ratification by the Parliament of Great Britain and the Parliament of Ireland of the Act of Union (1800), which abolished the Irish Parliament; this added 100 Irish members to the Commons and 32 to the Lords to create the Parliament of the United Kingdom of Great Britain and Ireland.
It has been called "the mother of parliaments", its democratic institutions having set the standards for many democracies throughout the world, and the United Kingdom parliament is the largest Anglophone legislative body in the world. However, the originator of the expression "mother of parliaments", John Bright, used it in reference to England, and not to her parliament.
In theory, supreme legislative power is vested in the Queen-in-Parliament; in practice in modern times, real power is vested in the House of Commons, as the Sovereign generally acts on the advice of the Prime Minister, and the powers of the House of Lords have been limited.
The legislative authority, the Crown-in-Parliament, has three separate elements: the Monarch, the House of Lords, and the House of Commons. No individual may be a member of both Houses, and members of the House of Lords are legally barred from voting in elections for members of the House of Commons.
Royal Assent of the Monarch is required for all Bills to become law, and certain Delegated Legislation must be made by the Monarch by Order in Council. The Crown also has executive powers which do not depend on Parliament, through prerogative powers, which include among others the ability to make treaties, declare war, award honours, and appoint officers and civil servants. In practice these are always exercised by the monarch on the advice of the Prime Minister and the other ministers of HM Government. The Prime Minister and government are directly accountable to Parliament, through its control of public finances, and to the public, through election of Members of Parliament.
The Monarch also chooses the Prime Minister, who then forms a government from members of the houses of parliament. This must be someone who could command a majority in a confidence vote in the House of Commons. In the recent past the monarch has had to make a judgment, as in the appointment of Alec Douglas-Home in 1963 when it was thought that the incumbent Prime Minister, Harold Macmillan, had become ill with terminal cancer. However, today the monarch is advised by the outgoing Prime Minister as to whom she should offer the position next.
The Upper House is formally styled The Right Honourable The Lords Spiritual and Temporal in Parliament Assembled, the Lords Spiritual being bishops of the Church of England and the Lords Temporal being Peers of the Realm. The Lords Spiritual and Lords Temporal are considered separate "estates", but they sit, debate and vote together.
Since the Parliament Acts 1911 and 1949, the powers of the House of Lords have been very much less than those of the House of Commons. All bills except money bills are debated and voted upon in House of Lords; however by voting against a bill, the House of Lords can only delay it for a maximum of two parliamentary sessions over a year. After this time, the House of Commons can force the Bill through without the Lords' consent under the Parliament Acts. The House of Lords can also hold the government to account through questions to government ministers and the operation of a small number of select committees. The highest court in England & Wales and Northern Ireland used to be a committee of the House of Lords, but it became an independent supreme court in 2009.
Балахчи Дмитрий
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.
Civil law countries often have specialized courts, administrative courts, that review these decisions. The plurality of administrative decisions contested in administrative courts are related to taxation.
Administrative law in common law countries
Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity.
While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). Judicial review of administrative decisions is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency. This difference is vital in appreciating administrative law in common law countries.
The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is unreasonable (under Canadian law, following the rejection of the "Patently Unreasonable" standard by the Supreme Court in Dunsmuir v. New Brunswick), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.
The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.
Judicial review is a procedure in English administrative law by which English courts supervise the exercise of public power. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally. Unlike the United States and some other jurisdictions, English law does not know judicial review of primary legislation (laws passed by Parliament), save in a few cases where primary legislation is contrary to EU law and the European Convention of Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review unless this is the case.
Бубенщикова Ольга
International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It serves as a framework for the practice of stable and organized international relations. International law differs from national legal systems in that it primarily concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.
International law is consent-based governance. This means that a state member of the international community is not obliged to abide by international law unless it has expressly consented to a particular course of conduct. This is an issue of state sovereignty.
The term "international law" can refer to three distinct legal disciplines:
· Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law.
· Private international law, or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
· Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.
The two traditional branches of the field are:
· jus gentium — law of nations
· jus inter gentes — agreements between nations
Public international law
Public international law (or international public law) concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either:
1. custom, or customary international law (consistent provincial practice accompanied by opinio juris),
2. globally accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or
3. codifications contained in conventional agreements, generally termed treaties.
Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).
International law has existed since the Middle Ages but much of its modern corpus began developing from the mid-19th century.Two sophisticated legal systems developed in the Western World: the codified systems of continental European states (Civil Law) and the judge-made law of England (Common Law). The fall of the Roman civilization did not result in the loss of the concepts of Roman Law. Starting in the later Middle Ages, unlegislated Roman law (ius commune or lex mercatoria) was applied by merchants in northern Italian city states and north-western European countries as the basis for commercial (and other) relationships. In the 20th century, the two World Wars and the formation of the League of Nations (and other international organizations such as the International Labor Organization) all contributed to accelerate this process and established much of the foundations of modern public international law. After the failure of the Treaty of Versailles and World War II, the League of Nations was replaced by the United Nations, founded under the UN Charter. The UN has also been the locus for the development of new advisory (non-binding) standards, such as the Universal Declaration of Human Rights. Other international norms and laws have been established through international agreements, including the Geneva Conventions on the conduct of war or armed conflict, as well as by agreements implemented by other international organizations such as the International Labor Organization, the World Health Organization, the World Intellectual Property Organization, the International Telecommunication Union, UNESCO, the World Trade Organization, and the International Monetary Fund. The development and consolidation of such conventions and agreements has proven to be of great importance in the realm of international relations.
Бубликов Никита
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary.
Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law or international rules and norms.