Legality: six views of the cathedral

Book section : Chapter

This chapter is concerned with the concept of legality, and its role in administrative law. Here, six views of the role of legality are examined. The first two views are foundational, albeit in different senses. Thus, the chapter begins with consideration as to how far legality may be conceived as foundational in the sense of being the meta-precept for administrative law doctrine. The third, fourth, and fifth views of the cathedral consider the way in which legality is deployed by way of contradistinction to other administrative law concepts, with implications for the structure of administrative law doctrine and the intensity of review. The respective distinctions are between legality and rationality, legality and the merits, and legality and policy. These dichotomies are explicated and subjected to critical scrutiny. The sixth and final role played by legality is as a distinct head of judicial review, as evidenced by the principle of legality, which exists in some common law legal systems, and is concerned with the way in which legislation that infringes fundamental rights will be interpreted. The principle is analysed, as is the rationale for the ascription of the nomenclature ‘legality’.

Authors: Craig, P

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Oxford University Press
• Host title: The Oxford Handbook of Comparative Administrative Law
• Pages: 881-899
• Chapter number: 42
• Series: Oxford Handbooks
• Place of publication: Oxford
• Publication date: 2020-12-15
• Edition: 1st
• DOI: 10.1093/oxfordhb/9780198799986.013.49
• EISBN: 9780191864797
• ISBN: 9780198799986
• Language: English
• Keywords: administrative law; policy; SBTMR; legality; merits; judicial review; administrative law doctrine; rationality
• Subtype: Chapter