Due Process and Fair Procedures: A Study of Administrative Procedures

Due Process and Fair Procedures: A Study of Administrative Procedures

Due Process and Fair Procedures: A Study of Administrative Procedures

Due Process and Fair Procedures: A Study of Administrative Procedures

Synopsis

Due Process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this major new book, the author of the widely admired Discretionary Powers offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework.

Excerpt

The subject of this book is fair procedures or, as some prefer, procedural due process, with particular reference to administrative contexts. The approach is theoretical in the sense that an analytical framework is devised within which to examine procedural issues. The approach is contextual in that empirical studies are drawn on to give a better understanding of how procedural issues are dealt with in practice (although in the course of the study it became all too clear how many issues there are for which research does not exist). The book is also concerned with doctrine to the extent that a number of important principles of procedural fairness are examined. This mixed approach may not appeal to everyone and runs the risk of pleasing no one, but it reflects a view that all three levels of analysis can, and indeed should, be brought together. Even though this is a long book, I have had to be selective as to both the range of issues dealt with and the depth of analysis of those chosen. At various points in the book, I have indicated areas which would lend themselves to further analysis or with respect to which empirical research would be especially beneficial.

While I hope that this book will stimulate research in the areas of administrative law and administrative government, that is just one amongst several of its objects. Drawing on the literature of political and social theory, I have put forward an account of procedural justice which I hope will be of interest to those of a more speculative turn of mind, particularly at a time when the traditional neglect of procedural justice is starting to be remedied. Procedural justice is also at the heart of the legal process and one of my aims here has been to show practitioners and students of law that issues of natural justice and procedural fairness need not be presented as a mass of decisions, rules, and practices without rhyme or reason. My argument is that this great and expanding body of doctrine can be placed within a coherent framework, where legal principles can be identified, and where the interplay of principle and policy can best be explored. The book is neither a textbook nor a treatise; it should be seen as a study of procedural justice, proceeding at several levels and from various points of view, but offering something to students and practitioners as well as their academic counterparts.

This book may be seen as an extension of Chapter VII of my earlier book, Discretionary Powers. In the course of the book, I have drawn heavily on the writings of others and, while that is fully acknowledged in the text, I would like to express my thanks to all those whose work has gone before, even though their views have occasionally attracted critical appraisal. In addition, I would like especially to acknowledge the help and advice received from the . . .

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