Huang, Cheng-Yi --- "Judicial Deference to Legislative Delegation and Administrative Discretion in New Democracies: Recent Evidence from Poland, Taiwan, and South Africa" [2010] ELECD 829; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 27

Section Title: Judicial Deference to Legislative Delegation and Administrative Discretion in New Democracies: Recent Evidence from Poland, Taiwan, and South Africa

Author(s): Huang, Cheng-Yi

Number of pages: 16

Extract:

27 Judicial deference to legislative delegation and
administrative discretion in new democracies:
recent evidence from Poland, Taiwan, and
South Africa
Cheng-Yi Huang*


The tension between judicial control, legislative delegation, and administrative discre-
tion is an ever-contested issue in administrative law. Many administrative law doctrines
address this question, either directly or implicitly, especially in the area of rulemaking.
Whether approached from the perspective of common law ultra vires doctrine or from
that of the continental Rechtsstaat, courts must ensure that an agency, in exercising
its discretion, does not go beyond the scope of legislative delegation. Constitutional
limits on delegation, in turn, go to the ultimately democratic nature of the system: only
where the administrative body can claim to exercise authority flowing from a consti-
tutional delegation of power from the legislature does that administrative body enjoy
ultimate democratic legitimacy. However, as shown in the experience of Germany in
interwar Europe in the twentieth century, overbroad delegations can pose a danger
for democracy. The flood of vague enabling laws of the 1920s ultimately culminated
in the Nazi's Ermächtigungsgesetz, or Enabling Act, of March 24, 1933, providing the
legal foundation, if not the political and cultural cause, for the National-Socialist dic-
tatorship (Lindseth 2004: 1341­71). As a consequence, the post-World War II German
Constitution clearly required the legislature to specify the `content, purpose, and extent'
(Inhalt, Zweck und Ausmaß) of the legislative authorization in the statutes (Currie 1995:
126), as a means of preventing future legislative ...