Judicial Review of Administrative Discretion
The Influence of Court Decisions on Administrative Actions
Summary
Excerpt
Table Of Contents
- Cover
- Title Page
- Copyright Page
- Preface
- About the author
- About the book
- Citability of the eBook
- Contents
- Abbreviations
- Part I. Discretion of the administration in the application and interpretation of the law
- 1.1 Decision-based approach to law application processes
- 1.2 Determinants of the public administration actions
- 1.3 Position of the administration body in the law application process27
- 1.4 Discretionary power of administering entities
- Part II. Judicial review of administration – models and types of influence
- 2.1 Models of court control over administration in Europe
- 2.2 Model and scope of judicial review of administration in Poland
- 2.3 Classification of case law impacts on making administrative decisions – judgement as ‘restraint’, ‘driver’ and ‘guide-post’
- Part III. Microscale of influence – impact on a single decision
- 3.1 Influence on process commencement
- 3.2 Determination of facts of an administrative case
- 3.3 Validating determinations of an administrative case and judicial practice
- 3.3.1 Operative interpretation and the catalogue of sources of the law
- 3.3.2 Influence of “precedents” on validation reasoning
- 3.3.3 A “precedent” as a source of a legal norm154
- 3.4 Determination of the content of a legal norm
- 3.4.1 The influence of jurisprudence on the interpretation
- 3.4.2 “Contents” of general reference clauses
- 3.4.3 Pragmatic arguments for the consideration of rulings of administrative courts
- 3.5 Influence of jurisprudence on content of administrative decision
- 3.5.1 Bound administrative decisions
- 3.5.2 Administrative discretion
- Part IV. Macroscale of influence – administrative policies and governance processes vs. human rights
- 4.1 Judicial decisions and administrative policies
- 4.2 Governance processes vs. human rights – international courts influence (the ECHR example)208
- Part V. Model approach
- 5.1 Rationalized administrative decision
- 5.2 Court’s influence on administrative decisions
- 5.3 Rationalization of an administrative decision by means of a discourse
- 5.4 Impact of rulings on public administration – optimization postulates
- Conclusion
Part I. Discretion of the administration in the application and interpretation of the law
1.1 Decision-based approach to law application processes
The application of the law can be perceived as a process initiated and maintained by a competent public authority, whose final effect consists of a binding legal decision. Such an approach corresponds to the decision-based approach2 adopted in political sciences that were subsequently transferred to legal sciences. One of its basic assumptions is the belief that a part of the reality can be covered and interpreted as decision-making processes or products of such processes, i.e. decisions.3 Research issues within the decision-based approach are concentrated around the studying of the decision-making situation, conditions and correctness of individual phases of the decision-making situation, location of the decision-making centre, identification and definition of participants’ roles in that process, characteristics of a decision, possibilities of its realization in social conditions, indication of actions aimed at its implementation and also the evaluation of its consequences.
Looking at the law application process from the decision-making perspective makes it possible to distinguish its individual stages (phases). The Polish law doctrine assumes with regard to the decision-making process of the courts4 that it consists of lines of reasoning referring to:
1. the determination of facts of the case;
2. interpretation of the law consisting of the determination of the source of reconstruction of the normative basis for a decision (validation reasoning) and the determination of its content (derivative reasoning);
3. qualification of determined facts from the perspective of the criteria formulated in the normative basis for the decision;
←13 | 14→4. determination of legal consequences;
5. the issue of a final decision and its justification,
each of them ending in the making of a separate fragmentary decision.
The general model of law application by public administration bodies does not materially differ from the judicial model presented above. However, it has to be noted that it has one fundamental difference that can be seen in the administrative decision-making process. A detailed analysis of law application by administering entities makes it possible to notice and distinguish an additional phase of that process that chronologically precedes the fundamental reasoning of the decision-making entity or the determination of facts of the case and the interpretation of the law leading to the qualification decision and to the determination of legal consequences. This initial stage of the law application process of the administrative type can be called the pre-decision phase. During that phase, a decision is made to initiate the process aimed at the issue of a unit decision for an external addressee, i.e. the decision to apply the law. Decision making of the judicial type is (depending on detailed preferences of the legislature) particularly based on the principle of the accusatorial procedure and the court has to “await” the submission of an appropriate motion, however, public administration bodies can take action both upon the application and also act ex officio.
Details
- Pages
- 146
- Publication Year
- 2019
- ISBN (ePUB)
- 9783631711989
- ISBN (PDF)
- 9783653063134
- ISBN (MOBI)
- 9783631711996
- ISBN (Hardcover)
- 9783631668900
- DOI
- 10.3726/b15364
- Language
- English
- Publication date
- 2019 (July)
- Keywords
- law application legal argumentation rule of law human rights judicial control precedental practice
- Published
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019. 143 pp.
