Chapter

Objections to the Orthodox Approach

Jaime Arancibia

in Judicial Review of Commercial Regulation

Published in print March 2011 | ISBN: 9780199609079
Published online May 2011 | e-ISBN: 9780191725289 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199609079.003.0003
Objections to the Orthodox Approach

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This chapter develops the arguments against the orthodox approach. It notes that this doctrine has kept the focus away from the position of the applicant—who is seeking effective review of the administrative order—and has, instead, prompted greater concentration on the criteria and interests of the decision-maker, thereby severely undermining judicial protection of individual rights against the abuse of executive power. This situation entails an inevitable clash with relevant principles of English public law which advocate a more equitable analysis of the claims of the competing parties. Two principal matters require consideration. First, it is inconsistent with the position which postulates the courts' role as ultimate and impartial guardians of law. Secondly, it is shown that there exist specific sets of reasons which militate against the application of the orthodox doctrine in the fields of factual findings and remedial discretion.

Keywords: judicial impartiality; Wednesbury; orthodox doctrine; abuse of executive power; legislative intention

Chapter.  28521 words. 

Subjects: Constitutional and Administrative Law

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