Principles Of Natural Justice Research Articles

Natural Justice - An Alternative Ground for Intervention in Corporate Decision Making?

This paper seeks to show that the existing regulation of corporate decision making fails to provide a comprehensive shield to minority shareholders. Instead of urging another addition to the plethora of statutory controls over corporations the authors suggest a more radical, but simple solution to this lacuna. This radical and simple solution would be to apply the rules of natural justice to corporate decision making, thus providing a safety net of last resort for minority shareholders who are unable to gain the protection of a statutory or common law remedy. TTiere is no doubt that at present the law governing the decision making powers of companies, at a board level or in the general meeting, are inadequate, at least insofar as procedural matters are concerned. As injustice may arise as a result of this inadequacy it will be submitted that the principles of natural justice should apply to company decisions. Against this backdrop this article considers the existing regulation of corporate decisions before examining the bases for the imposition of natural justice. The grounds for denying the implication of natural justice will also be discussed. Ultimately we will conclude that there is no insurmountable barrier to the application of the rules of natural justice to corporate decision making organs. The authors acknowledge that the solution we propose involves important policy considerations. This policy debate has been addressed in other articles.1 Our paper is based on the premise that once it is accepted that it is possible to move or adjust the private/public boundary then important advantages could occur to minority shareholders.

Critical Theory in Administrative Law

it must be assessed according to the regulatory objectives found in the legal doctrines of that area. The main information mechanisms by which law comprehends its environment are of course in law's genesis through Parliamentary debates and expert committees, and in the courts, where the application of the law requires expert judgements to be made on the needs of social systems. A decision like Pepper v Hart6o illustrates how information previously excluded to courts can be brought within the sphere of the legal. For Teubner, institutionalization (ie the transfer from environment to law) will occur when the courts can discover a 'transferable meaning which can be worked into and preserved in the conceptual structure of the law'.6' This is the key idea which I believe explains the dynamics of legaladministrative evolution. The mechanisms by which natural justice institutionalizes administrative complexity are not peculiar to natural justice but are expressed in the procedures available to a judge in any civil court, in his or her task of gathering the fullest picture of the context he or she seeks to regulate; for example, the rules relating to discovery or the admissibility of interrogatories. Thus in the context of natural justice, these information mechanisms will be rigid or flexible according to the extent to which the court is able to assess the character of the decision-making under review and to gauge the impact of any decision to impose natural justice on other centres of administrative decisionmaking. The crucial point in developing a theory of administrative-legal evolution is to see that the extent of the law's ability to respond to challenges to its principles will depend on the efficiency of its information mechanisms. These provide, to modify Berger and Luckmann's term, the 'legal construction of social reality' which is embodied in legal principles. Arguably, it is the rigid and inflexible character of these mechanisms in modem courts that hinder their capacity to respond intelligently and flexibly to the pressures exerted by the administrative environment. An example will make this clearer. We have indicated that the perceived complexity of administrative decision-making rendered the governing legal principle of natural justice, that procedural protection would be restricted to decision-making of a 'judicial' character, vulnerable. The courts therefore extended the coverage of natural justice to both 'judicial' and 'administrative' decision-making. The problem with this extension of natural justice into areas of complex administrative decision-making, such as statutory inquiries, is that it requires the court to assess the consequences of its decisions upon administrative systems, if it is to avoid making decisions which appear to judges to produce unforeseen and damaging consequences for these systems. The information mechanisms refer to the means by which the court can expertly assess the complexity of the administrative environment by, inter alia, comprehending the consequences of a decision to impose natural justice. An obvious example of an efficient information mechanism is the Brandeis Brief of the US, which allows (6 [1993] 1 All ER 42. 61 See Teubner, 'Substantive and Reflexive Elements in Modem Law', op cit n 7 at 264. This content downloaded from 157.55.39.163 on Wed, 21 Sep 2016 04:43:30 UTC All use subject to http://about.jstor.org/terms 202 Oxford Journal of Legal Studies VOL. 14 judges to hear evidence of social and economic facts in reaching their decisions. Applied to English natural justice the contention is that existing information mechanisms do not endow judges with the expertise necessary effectively to respond to the complexity of administrative systems.62 The result of this is that the courts cannot respond fully to challenges to legal principles. Citing Luhmann, for Teubner what is missing in the structure of modem law is: . . . a conceptual system oriented towards social policy which would permit one to compare the consequences of different solutions to problems, to accumulate critical experience, to compare different experiences from different fields, in short: to learn.63

Problems with Paccekabuddhas—Decoding Early Buddhism: A Rejoinder to Steven Collins

Steven Collins's review ( Religion 2:3 (July 1992), pp. 271-8) of my publication Ascetic Figures before and in Early Buddhism: the Emergence of Gautama as the Buddha, Berlin, New York, Mouton de Gruyter 1990) warrants an extended response for a variety of reasons. In a circumstance where a four-thousand word review has not one positive thing to say about a book, then the principle of natural justice particularly cries out for the author's right of reply. If Collins's review should have the effect of putting off prospective readers of my book then my reply is designed to recuperate their interest. Notwithstanding, it does not take an adept in the art of hermeneutic suspicion to realize the review actually tells us much more about the reviewer than the book. I cannot think that frenzied expressions like 'academic hooligan', 'hearer-bashing', 'fantasy', 'biting the hand that feeds you, with a vengeance' could so easily have poured forth from the pen of normally so gracious a reviewer, had this particular book not hit an emotive nerve—if nothing else!—and sent Collins into an unparalleled fit of moral panic. Indeed, I shall be so bold as to suggest that Collins's reaction to the book has less to do with questions of its scholarly credibility (though his academic posturing would have us believe otherwise): 'the thesis is presented as historical scholarship, and so it must be judged on academic grounds' (p. 274) than with Collins's own narrow, pedantic conception, or preconception, of Buddhist Studies. This means my rejoinder to Collins's review inevitably draws me into a discussion of broader methodological questions of general interest to the wider academic community as well as particular issues pertaining to Buddhist scholarship.

Natural Justice in the Australian Industrial Relations Commission

The Australian Industrial Relations Commission is under a statutorily imposed duty to act in afair manner, but with minimum resort to technical legal form. In addition, it is required to act promptly and effectively to prevent and settle industrial disputes. Some interesting questions arise concerning the relationship between this duty to act fairly and the common law principles of natural justice. This review of the subject area concludes that the two central natural justice principles (the right to a hearing and the rule against bias) are applied in a flexible manner in commission proceedings. The federal tribunal is often required to balance the strict application of these principles against a series of other factors. These might include, for example, matters like the expense, inevitable delay and procedural difficulties associated with a slavish adherence to the rules of natural justice.

Natural Justice Rediviva? The Right to a Fair Hearing in European Law

(1) According to ancient common law precedents, fair hearings are required by natural justice. In 1723, a somewhat difficult scholar, Dr. Bentley, who had been deprived of his degrees by the University of Cambridge because of grave misconduct, was reinstated by the King's Bench, on the ground that he had not been asked to make his defence as required by the laws of God and men. More than two centuries later, the House of Lords held that the dismissal of Brighton's Chief Constable was void for similar reasons: the town's Watch Committee had given him no notice of any charge against him and no opportunity to make his defence. Lord Reid, giving the leading speech, said that the Brighton authorities had been exercising a power affecting a person's rights, and that they were therefore ‘subject to the principles of natural justice’—whether they were acting in a judicial or in an administrative capacity.

Limitations on the principles of natural justice: An African perspective

Limitations on the principles of natural justice: An African perspective

Re Hardayal and Minister of Manpower and Immigration

The individual in international law — Aliens — Expulsion of aliens — Procedure — Cancellation of temporary immigration permit — Whether necessary to observe principles of natural justice — The law of CanadaThe individual in international law — Aliens — Expulsion of — Right of expulsion — Cancellation of permit — Whether to be made on quasi-judicial basis — Procedure of expulsion — Whether necessary to observe principles of natural justice — Whether decision of cancellation reviewable by Courts — Immigration Act 1970 — The law of Canada

Government administration in a small microstate: Developing the Cayman Islands

AbstractThe Cayman Islands use some of the increasingly familiar methods of resolving administratively the problems of smallness. The country's development and administrative performance depend on human resources which need to be planned in order to reduce dependence on outsiders, especially among the middle ranks of technical and professional staff. Education and training for the public service in the Cayman Islands is inadequate. Control of the administration is weak, especially among the independent boards and commissions, and there is a need for appeal procedures when the principles of natural justice have been breached. Political manipultion in personnel matters adversely affects performance, and there is a need for an effective civil service association to deal with other abuses. The problems of public administration are solved by scaling down the role of government in favour of private enterprise and against the provision of social welfare.

Brandt v. Attorney-General of Guyana and Austin

The individual in international law — Aliens — Expulsion of Procedure of expulsion — Whether necessary to observe principles of natural justice before expulsion — The law of GuyanaThe individual in international law — Aliens — Expulsion of — Right of expulsion — Procedure of expulsion — Whether necessary to observe principles of natural justice before expulsion — The law of Guyana

Inperkingsbevele

Banning orders have been issued since 1951 in terms o f the Internal Security Act 44 of 1950. Currently 109 banning orders are in force. They provide for the infringement of "inter alia” the rights to choose one’s own company, place of work and type of occupation, social contact is either very limited or non-existent. Banning orders have been justified in the light ofthe exciting dangers to the security of the slate, to the upholding of law and order and the threat of Communism. The Rabie Commission into Security Legislation has recommended that the present system bemaintained. In this paper the contents of banning orders are discussed with reference to juridical concepts such as the rule of law, human rights and the principles of natural justice. Banning orders are analyzed in terms of the "imago Dei”-concept and of what the Christian attitude to human rights should be. The exclusion of the common law revisionary powers of the Supreme Court and the absence of independent control are discussed. The recommendations of the Rabie Commission are analyzed and critized. One has to conclude that banning orders form a radical departure from the well-established principle that everyone is deemed innocent until his guilt has been adequately proved in an independent court o f law. This drastic deviation has not been remedied by the proposed Revision Committee whose independence and obligation to apply the rules o f natural justice are not absolute.

The Attitude of the Continental Legal Systems

Every approach to the problems of private international law from a comparative point of view must of necessity envisage the differences of basic conceptions between English and Continental law. Quasi-contractual obligations in Continental law are based on a universally recognized principle of natural justice, and if they are often classified as being quasicontractual, this expression is used to distinguish them from obligations arising in contract or tort rather than for the purpose of assimilating them to contract.

The Doctrine of Unjustified Enrichment: II. Unjustified Enrichment in French law

The law is not called upon to intervene merely because the assets of one person may happen to be increased as the result of a corresponding diminution in the assets of another person. But it is always possible, in particular circumstances, that the enrichment of one person owing to the impoverishment of another is manifestly unjust, and this would seem to give rise to an obligation to make restitution which is based on principles of natural justice. The Civil Law has a moral basis and is consequently called upon to provide the necessary means to enable justice to be done in such cases.