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Chapter 2

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LAWS 2502
Nikola Milanovic

Law State and CitizenChapter 2A Administrative Law Structure and ActionIntroductionDefinitionsAdministrative law is the law that relates to the administrative processThe administrative process includes those bodies that exercise statutory prerogative or other governmental power on behalf of the stateAdministrative law usually operates at a more specific daytoday level than constitutional law which deal with the ground rules of government and societyThere are many ways of viewing the state as there are social goals and philosophiesThe state will be defined as the institution that exercises sovereign power and purports to act on behalf of the public in a given geographical areaThemesAdministrative law has two sides one concerned with doing the jobs of government efficiently and the other with doing them fairlyThe first is the positive side concerned with the performance of government action and the second is the negative or control side concerned to ensure that government does what it is supposed to do without causing undue harm The underlying challenge of administrative law is to find the best balance betweenthe twoTheoriesHow this balance is set will vary with the immediate context prevailing social need and the social goals of the observerA persons view of the balance between fairness and efficiency may be influenced by his or her concept of the main role of the stateThe state may be seen as a facilitator of collective interests of private interests of citizen control or of equityAdministrative law approaches can vary according to an observers concept of law Philosophical perspective of legal positivism This approach stresses the primacy of statutes and tends to allocate an auxiliary interpretive role to courtsAll positivists insist on the legal importance of statutory textsThey are also likely to reject the proposition that courts can invalidate legislation on the basis of moral principles that lie beyond the text of any written constitutional enactment Opposing positivism are two alternative perspectives natural law and legal realismThe first of these views is that judges and others can rely on a set of unwritten but distinct and objective principles to invalidate offending government decisions and laws
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