SOFT LAW AND PUBLIC AUTHORITIES REMEDIES AND REFORM HART STUDIES IN COMPARATIVE PUBLIC LAW

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Soft Law And Public Authorities

Author : Greg Weeks
ISBN : 9781782256892
Genre : Law
File Size : 44.5 MB
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This book considers the phenomenon of soft law employed by domestic public authorities. Lawyers have long understood that public authorities are able to issue certain communications in a way that causes them to be treated like law, even though these are neither legislation nor subordinate legislation. Importantly for soft law as a regulatory tool, people tend to treat soft law as binding even though public authorities know that it is not. It follows that soft law's 'binding' effects do not apply equally between the public authority and those to whom it is directed. Consequently, soft law is both highly effective as a means of regulation, and inherently risky for those who are regulated by it. Rather than considering soft law as a form of regulation, this book examines the possible remedies when a public authority breaches its own soft law upon which people have relied, thereby suffering loss. It considers judicial review remedies, modes of compensation which are not based upon a finding of invalidity, namely tort and equity, and 'soft' challenges outside the scope of the courts, such as through the Ombudsman or by seeking an ex gratia payment.
Category: Law

Legitimate Expectations In The Common Law World

Author : Matthew Groves
ISBN : 9781509909490
Genre : Law
File Size : 35.50 MB
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The recognition and enforcement of legitimate expectations by courts has been a striking feature of English law since R v North and East Devon Health Authority; ex parte Coughlan [2001] 3 QB 213. Although the substantive form of legitimate expectation adopted in Coughlan was quickly accepted by English courts and received a generally favourable response from public law scholars, the doctrine of that case has largely been rejected in other common law jurisdictions. The central principles of Coughlan have been rejected by courts in common law jurisdictions outside the UK for a range of reasons, such as incompatibility with local constitutional doctrine, or because they mark an undesirable drift towards merits review. The sceptical and critical reception to Coughlan outside England is a striking contrast to the reception the case received within the UK. This book provides a detailed scholarly analysis of these issues and considers the doctrine of legitimate expectations both in England and elsewhere in the common law world.
Category: Law

Comparative Federalism

Author : Francesco Palermo
ISBN : 9781509901517
Genre : Law
File Size : 61.74 MB
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This is the first comprehensive book that explores the subject of federalism from the perspective of comparative constitutional law, whilst simultaneously placing a strong emphasis on how federal systems work in practice. This focus is reflected in the book's two most innovative elements. First, it analyses from a comparative point of view how government levels exercise their powers and interact in several highly topical policy areas like social welfare, environmental protection or migrant integration. Second, the book incorporates case law boxes discussing seminal judgments from federal systems worldwide and thus demonstrates the practical impact of constitutional jurisprudence on policymakers and citizens alike. "This is simply the best analysis of contemporary federalism currently available. It is comprehensive in its coverage, thorough in its analysis, and persuasive in its conclusions. Every student of federalism, from novice to expert, will find benefit from this volume.†? Professor G Alan Tarr, Rutgers University "Wading through the thicket of the multiple forms that the federal idea has taken in the contemporary world, this remarkably comprehensive treatise backed by case law fills a long-awaited gap in the literature on comparative federalism. It combines a mastery of the literature on federal theory with a critical understanding of how it plays out in practice. Outstanding in the breadth of its scope, this magisterial survey will serve as a work of reference for generations of scholars who seek to understand how federalism works in developed as well as developing countries.†? Professor Balveer Arora, Jawaharlal Nehru University New Delhi "This book is an extraordinarily handy work of reference on the diverse federal-type systems of the world. It handles both shared principles and differences of perspective, structure or practice with confidence and ease. It will become a standard work for scholars and practitioners working in the field.†? Professor Cheryl Saunders, The University of Melbourne "This is a remarkable book – for its sheer breadth of scope, combining detail of practice with analysis of federal principles, and for its fresh look at federalism. With great erudition, drawing on world scholarship and the practice of federalism across the globe, Palermo and Kössler magnificently traverse from the ancient roots of federalism to the contemporary debates on ethno-cultural dimensions and participatory democracy. The book sets a new benchmark for the study of comparative federalism, providing new insights that are bound to influence practice in an era where federal arrangements are expected to deliver answers to key governance and societal challenges.†? Professor Nico Steytler, University of the Western Cape
Category: Law

The Federal Idea

Author : Amnon Lev
ISBN : 9781509907137
Genre : Law
File Size : 32.98 MB
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A significant part of the world's population lives under some sort of federal arrangement. And yet, the concepts of federalism and federation remain under-theorised. Federalist theorists have, for the most part, defined their object by opposition to the unitary state. As a result, they have not developed public law theories that capture the specificity of this type of polity. Bringing together contributions from leading public law theorists and intellectual historians, this volume explores the foundations of federalism. It develops novel perspectives on the core problems of traditional federalist theory and charts new departures in federalist theory and federal power-sharing. At a time when we look for more inclusive ways of ordering public life, the volume fills an urgent theoretical and political need.
Category: Law

Legitimate Expectations In The Common Law World

Author : Matthew Groves
ISBN : 9781509909490
Genre : Law
File Size : 53.76 MB
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The recognition and enforcement of legitimate expectations by courts has been a striking feature of English law since R v North and East Devon Health Authority; ex parte Coughlan [2001] 3 QB 213. Although the substantive form of legitimate expectation adopted in Coughlan was quickly accepted by English courts and received a generally favourable response from public law scholars, the doctrine of that case has largely been rejected in other common law jurisdictions. The central principles of Coughlan have been rejected by courts in common law jurisdictions outside the UK for a range of reasons, such as incompatibility with local constitutional doctrine, or because they mark an undesirable drift towards merits review. The sceptical and critical reception to Coughlan outside England is a striking contrast to the reception the case received within the UK. This book provides a detailed scholarly analysis of these issues and considers the doctrine of legitimate expectations both in England and elsewhere in the common law world.
Category: Law

Australian Constitutional Values

Author : Rosalind Dixon
ISBN : 9781509918423
Genre : Law
File Size : 72.6 MB
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Vigorous debate exists among constitutional scholars as to the appropriate 'modalities' of constitutional argument, and their relative weight. Many scholars, however, argue that one important modality of constitutional argument involves attention to underlying constitutional purposes or 'values'. In Australia, this kind of values-oriented approach has been advocated by leading constitutional scholars, and also finds support in the judgments of the High Court at various times, particularly during the Mason Court era. Much of the scholarly debate on constitutional values to date, however, focuses on whether the Court should in fact look to constitutional values in this way, not the kinds of values the Court should consider, given such an approach. This book responds to this gap in the existing scholarly literature, by inviting a range of leading Australian constitutional lawyers and scholars to address the relevance and scope of various substantive constitutional values, and how they might affect the Court's approach to constitutional interpretation in various contexts. It is essential reading for anyone seeking a deeper understanding of Australia's constitutional system.
Category: Law

The Nordic Constitutions

Author : Helle Krunke
ISBN : 9781509910953
Genre : Law
File Size : 38.26 MB
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This book analyses the Nordic constitutional systems of Denmark, Finland, Iceland, Norway and Sweden in a comparative context. It has two main aims: first to fill a gap in the literature by providing an accessible English language account of the Nordic constitutions, and second to provide a comparative analysis of them, revealing their similarities and differences within their political, historical and cultural contexts. In this respect, the book challenges the assumption that the Nordic countries form a homogeneous constitutional system due to their cultural and historical affinities, a view not necessarily supported by a close comparative examination. A key issue is EU membership –where the Nordic countries have made different choices at different times – and the book will show how this has affected the individual countries and whether a divide between EU member states (Denmark, Finland and Sweden) and non-members (Iceland and Norway) has appeared. Another key issue is how the ECHR has impacted the Nordic constitutional systems and whether the convention draws the Nordic systems closer to each other. The book represents a first of its kind in the English language, and will provide constitutional scholars with a valuable comparative resource on the Nordic region.
Category: Law

Human Rights In The Uk And The Influence Of Foreign Jurisprudence

Author : Hélène Tyrrell
ISBN : 9781509904969
Genre : Law
File Size : 37.92 MB
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Human Rights in the UK and the Influence of Foreign Jurisprudence represents the first major empirical study of the use of foreign jurisprudence at the UK Supreme Court. This book focuses on the patterns of use and non use of rulings from foreign domestic courts in human rights cases before the UK Supreme Court. Results are drawn from quantitative and qualitative research, presenting data from the first eight years of Supreme Court activity. The evidence includes interviews with active and former members of the senior judiciary, as well as a focus group including some of the Supreme Court Judicial Assistants. It is argued that foreign jurisprudence is more intimately woven into the fabric of judicial reasoning, and serves a wider range of functions, than the term 'persuasive authority' might imply. Foreign jurisprudence is used mainly as a heuristic device, providing judges with a fresh analytical lens. Foreign jurisprudence is also important when interpreting a common legislative scheme, supporting dialogue between the Supreme Court and supranational courts such as the European Court of Human Rights. The perspectives offered by foreign jurisprudence can also support a stronger conception of domestic human rights. In these ways, this book addresses a broader political question about the source of human rights in the UK.
Category: Law

Public Law Adjudication In Common Law Systems

Author : John Bell
ISBN : 9781849469937
Genre : Law
File Size : 20.32 MB
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This volume arises from the inaugural Public Law Conference hosted in September 2014 by the Centre for Public Law at the University of Cambridge, which brought together leading public lawyers from a number of common law jurisdictions. While those from such jurisdictions share background understandings, significant differences within the common law world create opportunities for valuable exchanges of ideas and debate. This collection draws upon one of the principal sub-themes that emerged during the conference – namely, the the way in which relationships and distinctions between the notions of 'process' and 'substance' play out in relation to and inform adjudication in public law cases. The essays contained in this volume address those issues from a variety of perspectives. While the bulk of the chapters consider topical issues in judicial review, either on common law or human rights grounds, or both, other chapters adopt more theoretical, historical, empirical or contextual approaches. Concluding chapters reflect generally on the papers in the collection and the value of facilitating cross-jurisdictional dialogue.
Category: Law