Administrative law and legitimacy

Thesis

This investigation proposes an understanding of administrative law that emphasises the need to manage disagreement within the political community. It does so by developing administrative law in a way that renders administrative decisions to a minimum extent legitimate, even amidst continuing disagreement within the political community. Three propositions will be made. First, the need to manage disagreement within a political community will be formally introduced as the Conundrum. Second, an understanding of legitimacy will be developed: on this understanding legitimacy evaluates how well a given administrative decision addresses the Conundrum. Under it:

(a) An administrative decision is legitimate to the extent that citizens within a given political community do not find it seriously flawed according to their conscience.

(b) Within each political community there will emerge an internal set of criteria for legitimacy. Such criteria are internal because they emerge from within the political community itself, and are not prescribed upon it by a theorist. By satisfying such internal criteria for legitimacy an administrative decision is guaranteed to be to a minimum extent legitimate.

(c) The internal criteria for legitimacy for every political community will contain two internal criteria: participation and transparency. In the case of the English political community there is an additional internal criterion: Rawlsian public reason.

Third, the English courts can and should fully enforce the internal criteria for legitimacy as they develop and apply English administrative law. This is so unless Parliament acts to provide otherwise. Subject to this qualification, by doing so the courts secures that each administrative decision in the English political community must be to a minimum extent legitimate. Further illustrations will then be offered for how the courts should go about this task vis-à-vis the internal criteria of participation, transparency and Rawlsian public reason in the English political community.

Authors: Lui, LY

• DOI: 10.5287/ora-qqvwqwb9n
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: administrative law; legitimacy
• Subjects: Administrative law