Procedural Fairness—A Pandora’s Box of Legality

Evan Fox-Decent

in Sovereignty's Promise

Published in print December 2011 | ISBN: 9780199698318
Published online January 2012 | e-ISBN: 9780191732171 | DOI:

Series: Oxford Constitutional Theory

Procedural Fairness—A Pandora’s Box of Legality

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In Chapter VII I argue that the duty of procedural fairness is best explained and justified as a public fiduciary duty. The fiduciary theory offers a novel reply to the most familiar objection raised against the idea of a statute-independent duty of fairness. The objection is that judges illegitimately “make law” and violate the separation of powers when they impose procedural safeguards which lack a basis in statute. On the fiduciary theory, the freestanding duty of fairness arises from the actual fiduciary conditions of public administration. Thus, judges who impose the duty no more infringe the separation of powers than judges who vindicate rights at private law: in both cases, the relevant rights and obligations arise from the circumstances which attend the parties’ interaction.

Keywords: procedural fairness; natural justice; Nicholson; Knight; Baker; Dunsmuir; separation of powers; common law constitutionalism; rule of law

Chapter.  12660 words. 

Subjects: Constitutional and Administrative Law

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