Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 27: Judicial Deference to Legislative Delegation and Administrative Discretion in New Democracies: Recent Evidence from Poland, Taiwan, and South Africa
Cheng-Yi Huang* The tension between judicial control, legislative delegation, and administrative discretion is an ever-contested issue in administrative law. Many administrative law doctrines address this question, either directly or implicitly, especially in the area of rulemaking. Whether approached from the perspective of common law ultra vires doctrine or from that of the continental Rechtsstaat, courts must ensure that an agency, in exercising its discretion, does not go beyond the scope of legislative delegation. Constitutional limits on delegation, in turn, go to the ultimately democratic nature of the system: only where the administrative body can claim to exercise authority flowing from a constitutional delegation of power from the legislature does that administrative body enjoy ultimate democratic legitimacy. However, as shown in the experience of Germany in interwar Europe in the twentieth century, overbroad delegations can pose a danger for democracy. The flood of vague enabling laws of the 1920s ultimately culminated in the Nazi’s Ermächtigungsgesetz, or Enabling Act, of March 24, 1933, providing the legal foundation, if not the political and cultural cause, for the National-Socialist dictatorship (Lindseth 2004: 1341–71). As a consequence, the post-World War II German Constitution clearly required the legislature to specify the ‘content, purpose, and extent’ (Inhalt, Zweck und Ausmaß) of the legislative authorization in the statutes (Currie 1995: 126), as a means of preventing future legislative abdications.1 This doctrine has become a constitutional paradigm for new democracies in dealing with the dilemma of legislative delegation and administrative rulemaking. New democracies, the subject of this...
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