Due process of law beyond the state : requirements of administrative procedure

241 Pages·2016·1.54 MB·English

by  Della Cananea

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DUE PROCESS OF LAW BEYOND THE STATE
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Due Process of Law
Beyond the State
Requirements of Administrative Procedure
GIACINTO DELLA CANANEA
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To Simonetta; fidelitas et amor
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Foreword
The current stage of globalization has increased legal relations between individu-
als, social groups, and firms with governments other than their own, either from
another nation or from an international or supranational organization, with the
consequence that questions concerning exercises of power by public authorities
have increased. These questions are differentiated in nature. In several nations of
the world such questions are traditionally conceptualized in terms of procedural
fairness. In the day- to- day working of government in the twentieth century sound
administration has assumed equally prominent importance. In one sense, this lat-
ter way of looking at administrative procedure might be represented as being in
conflict with the former. I have tried, therefore, both to illustrate the variety of
legal institutions that are inspired by these instrumental and non- instrumental
rationales, and to discuss the problems raised by exercises of administrative pow-
ers from the viewpoint of general principles of law. In contrast to the opinion that
general principles are increasingly more difficult to discern in our differentiated
world, I argue that it is precisely at the level of general principles that we can find
the instruments for understanding, and possibly solving, some such problems. In
studying and teaching transnational law I have found that the works of administra-
tive and constitutional lawyers on the one hand and those of lawyers working in
the vast realm of international law, and in particular in the fields of world trade and
of foreign investment, leave a gap that is sometimes hard to bridge. This book is an
attempt to bridge that gap.
I have been studying and writing on aspects of this topic for longer than it might
have been expected initially. The idea came to my mind almost fifteen years ago,
during a series of seminars held in my old University (‘La Sapienza’, Rome), in
the context of the problems raised by regional and global authorities, such as the
European Union and the World Trade Organization, in relation to administra-
tive action. Those problems were not wholly new, but to a degree they had a more
profound sense of novelty that required a shift in perspective. I thus attempted to
think about administrative due process in terms of the demands that adjudication
and regulation must meet in an increasingly globalized world. This shift in per-
spective has led me to reconsider some received ideas about administrative law, still
conceived by some as a sort of national enclave, and more particularly to look at
the parallel developments and external influences that characterize an important
trend of our epoch, the codification of administrative procedure. Together with a
renewed interest in legal comparison, this academic work has been characterized by
a growing attention to the standards set out by regulatory regimes and the rulings
of international courts and tribunals. It is trite wisdom, but still wisdom that con-
fronting one’s views about certain legal institutions with those who work in other
areas is not always easy, but can be very helpful. I have not retracted my former
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views that the global diffusion of ideas and thoughts about the law is much more
complex than the one- way processes on which some critics of globalization tend
to focus, and that looking beyond the borders of the State, of each State, is some-
times the only way to fully understand its particularities in terms of both concepts
and principles. However, I have had the chance to come across a lot of new infor-
mation and argument about the role of public authorities and to refine the views
expressed initially. Even a quick look at the shorter book published some years ago
(Al di là dei confini statuali. Principi di diritto pubblico globale (Il Mulino, 2009))
shows profound differences, empirical and normative, to that which is presented
here. Readers will judge whether I have been successful in proposing an integration,
rather than a mere juxtaposition, of legal realities that are too often considered only
from a particular point of view.
Whatever the success of the enterprise, it has been made possible by the con-
tribution of many. The Italian Ministry for Research and Universities has granted
funds for empirical work and some younger scholars have helped me in collecting
legal materials and literature. Two Italian universities (‘Federico II’, Naples and
‘Tor Vergata’, Rome) have allowed me to spend several periods of research abroad
over the course of the last decade. Two French universities (Bordeaux and Science-
Po, Paris) and the Max Planck Institute for Comparative and International Law
(Heidelberg) have generously hosted me more than once. The Duke Law School
and the Yale Law School, where I have had the chance to teach, have provided not
only the resources of their libraries but also an environment that stimulated a grad-
ual refinement of my arguments. Several colleagues (among them, Jean- Bernard
Auby, Armin von Bogdandy, Mauro Bussani, Edoardo Chiti, Bernardo Mattarella,
Ralf Michaels, Gregory Shaffer, Stephan Schill, and Jacques Ziller) have provided
helpful comments on earlier versions of some chapters of this book. Their support is
gratefully acknowledged, together with that of two anonymous reviewers. For criti-
cism and most valuable suggestions for improving (and purging) the manuscript I
am greatly indebted to two good friends and distinguished colleagues, Paul Craig
and Alec Stone Sweet. For what remains, I only am culpable.
Last but by no means least, I want to express my gratitude to my wife Simonetta
and to our kids— Isabella, Alfonso, and Federico— for their invaluable support dur-
ing all these years.
Rome, 1 February 2016
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Table of Contents
Table of Cases  xiii
Table of Treaties  xvii
Table of Legislation  xix
List of Abbreviations  xxi
1. Administrative Justice: A Transnational Perspective  1
PART I— REQUIREMENTS OF ADMINISTRATIVE
DUE PROCESS
2. The Requirement to Carry Out a Procedure  17
3. Audi Alteram Partem  35
4. The Giving Reasons Requirement  61
PART II— RATIONALES FOR DUE
PROCESS REQUIREMENTS
5. Variety of Rationales for Due Process Requirements  85
6. Dignity and Participation  103
7. Sound Administration and Cooperation  121
PART III— A THEORY OF ADMINISTRATIVE DUE
PROCESS BEYOND THE STATE
8. Administrative Due Process: A Conceptual Analysis  139
9. Administrative Due Process as a General Principle of Public Law  155
10. Administrative Due Process as a Global Principle of Public Law  179
Index  207