
Contents
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42.1 Introduction 42.1 Introduction
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42.2 Foundational: Meta-Precept of Administrative Law 42.2 Foundational: Meta-Precept of Administrative Law
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42.3 Foundational: Formal Basis for Authority 42.3 Foundational: Formal Basis for Authority
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42.4 Distinction I: Legality and Rationality 42.4 Distinction I: Legality and Rationality
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42.4.1 UK Common Law 42.4.1 UK Common Law
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42.4.2 US Law 42.4.2 US Law
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42.4.3 EU Law 42.4.3 EU Law
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42.5 Distinction II: Legality and the Merits 42.5 Distinction II: Legality and the Merits
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42.6 Distinction III: Legality and Policy 42.6 Distinction III: Legality and Policy
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42.7 A Distinct Head of Review: The ‘Principle of Legality’ 42.7 A Distinct Head of Review: The ‘Principle of Legality’
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42.8 Conclusion 42.8 Conclusion
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42 Legality: Six Views of the Cathedral
Get accessPaul Craig is Emeritus Professor of English Law at the University of Oxford
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Published:15 December 2020
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Abstract
This chapter is concerned with the concept of legality, and its role in administrative law. Here, six views of the role of legality are examined. The first two views are foundational, albeit in different senses. Thus, the chapter begins with consideration as to how far legality may be conceived as foundational in the sense of being the meta-precept for administrative law doctrine. The third, fourth, and fifth views of the cathedral consider the way in which legality is deployed by way of contradistinction to other administrative law concepts, with implications for the structure of administrative law doctrine and the intensity of review. The respective distinctions are between legality and rationality, legality and the merits, and legality and policy. These dichotomies are explicated and subjected to critical scrutiny. The sixth and final role played by legality is as a distinct head of judicial review, as evidenced by the principle of legality, which exists in some common law legal systems, and is concerned with the way in which legislation that infringes fundamental rights will be interpreted. The principle is analysed, as is the rationale for the ascription of the nomenclature ‘legality’.
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