The Growth of Executive Discretion Goodnow, Frank J.
Proceedings of the American Political Science Association,
12/1906, Volume:
2
Journal Article
Open access
The most notable point of difference between the English and continental administrative systems at the end of the eighteenth century was probably the relation which they bore to the judiciary. The ...English administrative system was characterized by its subjection to the control of the courts. The continental administrative system, as seen particularly in that of France, was marked by its freedom from judicial control. The retention by each system' of its characteristic feature may have been due to the conscious desire to secure judicial control or administrative independence, as the case might be. And yet the origin of the difference between the two systems is hardly to be attributed to any well-defined theory of government, but rather to a course of political development of which the leaders of political thought were in all probability not fully conscious. Thus, in England, the jurisdiction of the courts, to whose exercise the judicial control was due, was developed at a time when no clear distinction was made between judicial and administrative authorities, when the royal courts occupied toward the chief of administration, the crown, a position similar to that of all other governmental authorities, when the judges were like other officers subject to the disciplinary power of the crown, which might remove them from office at any time and bring pressure to bear upon them to secure decisions favorable to the royal interests. The development of a wide jurisdiction in the courts, under such circumstances, did not involve a subjection of administrative action to a control exercised by bodies independent of the administration. For the crown could prevent the rendering of decisions unfavorable to its interests. The crown did not, therefore, try to limit the jurisdiction of the royal courts, but permitted them to exercise such powers as ultimately made them the highest and last instance of control over almost all governmental action.
During the last decade the principal issues of American administrative law have been presented within a framework largely dominated by the recruitment and administration of a military establishment ...far beyond our normal peacetime complement, by the application of emergency economic controls to that part of our civilian economy normally left to the freedom of the market place, and by the development of security techniques designed to guard against real or fancied dangers of espionage, sabotage and divided loyalties. In such an atmosphere, it is not surprising that many of the burning issues of the thirties which aroused leaders of the American Bar Association to storm the citadels of bureaucratic power have seemed to pale into relative insignificance beside the sweep of discretionary authority exercised in the name of national emergency. A society which had scarcely freed itself from the controls born of the Second World War before the threatening clouds brought a re-emergence of the familiar pattern of selective service, priorities and allocation, price regulations and wage orders, could derive small comfort from the niceties of the Administrative Procedure Act as bulwarks for the defense of ancient liberties. Nevertheless, emergency controls account for only a part of the machinery of government, and it is still our hopeful assumption that they are temporary phenomena.
The Department of Immigration was arbitrary in the management of deportation. Curbs on this arbitrariness were few and ineffective. As J. F. Hodgetts points out, “There is a paradox in the fact that ...the administrative branch of the government is by far the largest of our public and private institutions and yet, even to the informed members of the general public, it is the least visible.”¹
The Department’s immigration and deportation practices were not visible to, and therefore not controllable by, outsiders. A 1940 study by legal scholar C. F. Fraser comparing deportation in the U. K., Ireland, Northern Ireland,
The past two decades have seen profound changes in the legal profession. Lives of Lawyers Revisited extends Michael Kelly's work in the original Lives of Lawyers, offering unique insights into the ...nature of these changes, examined through stories of five extraordinarily varied law practices. By placing the spotlight on organizations as phenomena that generate their own logic and tensions, Lives of Lawyers Revisited speaks to the experience of many lawyers and anticipates important issues on the professional horizon.
L’exception de recours parallèle, création prétorienne du Conseil d’État datant du milieu du Second Empire, est classiquement présentée comme une fin de non-recevoir spéciale au contentieux de ...l’excès de pouvoir. Elle consiste en ce que ce recours soit irrecevable dès lors que le requérant dispose d’un autre recours contentieux, le recours parallèle, lui permettant d’obtenir un résultat équivalent à celui procuré par le recours pour excès de pouvoir. Cette version originaire de la notion a été modélisée, c’est-à-dire qu’une synthèse de ses propriétés a été réalisée. Un modèle-type a ainsi été produit, permettant au juge de trancher des situations de concurrence des recours ou des compétences au-delà du seul contentieux de l’excès de pouvoir. Cette exception de recours parallèle dérivée est ainsi adaptée à de nouveaux domaines tels que le contentieux des référés ou le contentieux lié à la mise en œuvre du droit de l’Union européenne. La pratique de l’exception de recours parallèle par le juge n’est pas systématisable, elle est intuitive et relève d’une méthode. Celle-ci répond à un raisonnement finaliste permettant au juge de conduire ses politiques jurisprudentielles.
The objection of parallel proceedings, judge-made law created by the Council of State from the middle of the Second Empire, is traditionally explained like an absolute bar to proceedings devoted to misuse of powers. Indeed, the action is inadmissible if the applicant may bring another action, the parallel proceedings, with similar effect. This primary version has been modeled with a synthesis of notion characteristics. A standard model was produced and the judge can settle other situations of parallel proceedings. This second version of the objection of parallel proceedings is adapted to new proceedings like emergency proceedings or the implementation of European Union law. The practice of the objection of parallel proceedings is not theorizable. The judge is using this notion intuitively as a method for leading his judicial policies.
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