
Contents
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7.1 Rationality and Fairness in Procedures 7.1 Rationality and Fairness in Procedures
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7.11 The proportionality principle 7.11 The proportionality principle
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7.12 The importance of participation 7.12 The importance of participation
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7.2 Institutional Responsibility for Procedures 7.2 Institutional Responsibility for Procedures
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7.3 Participatory Procedures in Discretionary Contexts 7.3 Participatory Procedures in Discretionary Contexts
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7.31 Types of decisions and modes of participation 7.31 Types of decisions and modes of participation
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7.32 Two levels of authority and the principle of selective representation 7.32 Two levels of authority and the principle of selective representation
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7.33 A note on mediation 7.33 A note on mediation
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7.34 Problems of pluralism 7.34 Problems of pluralism
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7.35 Problems of corporatism 7.35 Problems of corporatism
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7.4 Judicial Principles of Participatory Procedures 7.4 Judicial Principles of Participatory Procedures
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7.41 The common law background 7.41 The common law background
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7.42 Fair procedures in modified adjudication 7.42 Fair procedures in modified adjudication
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7.43 Judicial extension of fair procedures 7.43 Judicial extension of fair procedures
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7.44 Participatory procedures in specific and general policy decisions 7.44 Participatory procedures in specific and general policy decisions
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7.5 A Note on Standing 7.5 A Note on Standing
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7.6 Conclusion 7.6 Conclusion
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7 Fair Procedures in Discretionary Decisions
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Published:May 1990
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Abstract
The question of fair procedures in discretionary contexts has been in recent years of increasing concern to the legislature, court, and administrative authorities. This chapter deals with that issue and considers the ways in which traditional procedural doctrines, based around the ancient principles of natural justice, have been developed and extended to take account of discretionary powers. The analysis goes beyond that, however; it begins by considering the basis of procedural fairness, for without some theoretical stance it is difficult to assess the course of legal doctrines and to suggest lines for further development. It is also necessary to consider the place that the concepts of representation and participation have in the design of procedures. In Chapter 2 it was suggested that there are limits on the capacity to regulate discretionary powers by general legal norms, and that, accordingly, participatory procedures are important in influencing outcomes and in securing their legitimacy. The chapter attempts to show how these ideas can be translated into specific procedural requirements. The concept of consultation is considered and shown to be especially helpful in linking discretionary powers to the broader political system, and in devising appropriate modes of participation. Finally, within this general framework, procedural doctrines developed by the courts are considered.
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