Chapter

Fairness, Equality, Rationality: Constitutional Theory and Judicial Review

T. R. S. Allan

in The Golden Metwand and the Crooked Cord

Published in print February 1998 | ISBN: 9780198264699
Published online March 2012 | e-ISBN: 9780191682766 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198264699.003.0002
Fairness, Equality, Rationality: Constitutional Theory and Judicial Review

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This chapter suggests that controversy over many of the details of administrative law can only be settled by choosing between conflicting theories of British democracy. There is an inescapable tension between, on the one hand, the traditional doctrine of ultra vires and its foundation in legislative supremacy, and on the other, the contemporary recognition of a range of common law rights conceived as basic components of a liberal, democratic legal order. This unresolved tension has led to a marked divergence between rhetoric and has resulted in a number of prominent cases. The courts' reluctance to recognize the statutory exclusion of judicial review illustrates the way in which, in a genuine constitutional order, legislative sovereignty must be tempered by the demands of the rule of law and separation of powers.

Keywords: administrative law; British democracy; judicial review; courts; legislative sovereignty; rule of law; separation of powers

Chapter.  10369 words. 

Subjects: Constitutional and Administrative Law

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