LEGAL RESEARCH

Legal Research

Legal Research

Abstract

This paper offers a reconsider of the body of empirical legal study considering administrative justice, proposing a critique of existing work and proposing some future directions for the field. We draw a distinction between prime conclusion making (both individuated and rule-making) and reconsider methods (both litigation and options modes). In the first part we explore empirical legal investigations which drop either edge of the decision-making and review splitting up line before examining an demonstration of scholarship which has tried to link the two - study on the influence of dispute resolution on on-going administrative practices. We also focus some limitations in living influence study, focusing on the inclination to analyze single dispute tenacity means in isolation from other ones and the failure to analyze the significance of oversight through guideline (as are against to review) for administrative performs. In the second part, we propose some future directions for empirical administrative fairness research. We discover the promise of lawful consciousness study for empirical administrative fairness scholarship, and propose new 'territories' for administrative fairness researchers: lawless person fairness processes and administrative activities of personal agencies. Finally, we contend that a mapping of administrative fairness institutions - both historic and cross-jurisdictionally - can tell us much about how the connections between people and administrative agencies may move across time and space.

The key aspect of modern government is the delegation to ministers and agencies of power to make subordinate legal rules combined with the widespread conferment on ministers and public officials of discretionary powers to apply both primary and secondary legal rules. Administrative justice may be conceived as comprising the norms, processes and institutions governing the exercise of such administrative powers. In many jurisdictions the norms are found in codifying instruments of one kind or another, though the common law principles of administrative law remain important in some jurisdictions. The processes range from rule-making and primary decision-making through to appeal against and review of decisions under a variety of institutional models.

The concept of administrative justice receives such varying emphasis in different jurisdictions that its value in underpinning comparative doctrinal inquiry has been questioned (Nehl 2006: 24). For example, in the United States administrative justice is chiefly associated with the structuring of rule-making activities of regulatory agencies.2 In Commonwealth countries, however, administrative justice is more frequently understood as relating to decision-making processes by the executive applying legal rules as part of delivery of services such as welfare. Civilian systems also tend to place greater emphasis in their administrative law on decisions affecting individuals than on more generalised rule-making.

These differences in emphasis may partly be explained by explicit or implicit assumptions about the legitimacy of administratie discretion. In the United States anxieties about discretionary decision-making by unelected officials underpin a two-fold response under which rules are favoured over discretionary decision-making and the making of rules is constrained by extensive procedural requirements (Asimow 1983). Most legal systems have some mechanism for the judicial review3 of administrative actions and, to some extent, the ...