Judicial Delegation Doctrines: The US, Britain, and France

Abstract

Legislatures frequently enact primary legislation that delegates secondary law making powers to administrative agencies. Judicial review designed to ensure that this secondary legislation is in accord with the primary legislation necessarily involves judicial interpretation of the primary legislation and hence also some degree of judicial law making. Both the relative degree of judicial law making and its causes may vary from country to country. Judicial review of secondary legislation in three countries is examined. Judicial activism is great in the United States and probably related both to congressional inefficiency in passing amending statutes and judicial recruitment and career patterns. The level of judicial activism in the UK has been low but may be increasing. It is severely constrained by the capacity of parliament rapidly to 'correct' judicial interpretations but encouraged by judicial career patterns. The formal decisions of the French Council of State show little judicial intervention against administrators' secondary legislation but such intervention may occur extensively at the stage of agency regulation drafting rather than through formal review processes.