1. The place of termination requires. — While these principles of the rule of law – publicity, clarity, consistency, foresight and stability – are directly applicable to regulatory law, this legislation does not comply in several important respects. A fundamental feature of our administrative government is broad legislative delegations to public servants and administrative agencies, which are not only broad, but also do not impose direct obligations on private parties – characteristics for which Professor Edward Rubin proposes the term “intransitive.” 74 74 Edward L. Rubin, Law and Legislation in the Administrative State, 89 Colum. 369, 380-85 (1989). Modern legislation “is, by its very nature, an institutional practice by which the legislature, as a fundamental policy-making body, provides guidance to government mechanisms that implement policies.” 75 75 Id., p. 372; see also Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States 106 (2nd edition 1979) (“Clearly, modern law has become a series of instructions to administrators rather than a series of orders to citizens.”).
Certainly, Congress enacts some laws that directly impose obligations on individuals, and some laws are drafted very precisely. But, as administrative lawyers and political scientists have long acknowledged, the enormous weight of modern legislation “regulates the behavior of government agencies, not the behavior of individuals.” 76 76 Rubin, cited in footnote 74, p. 376; see also David Epstein and Sharyn O`Halloran, Delegating Powers: Transaction Cost Politics Approach to Policy Making Under Separate Powers 5 (1999) (referring to broad delegation characterizing the modern administrative state); McCubbins & Sullivan, op. cit. cit., note 9, p. 1. 403 (“[T]he link between policy-making has largely shifted from constitutionally designated branches of government to bureaucracy.”). Close Unlike creating primary obligations for private parties, regulatory laws structure processes, means, and considerations for agencies.
These well-known features of regulatory laws have important implications for the principles of communication of the rule of law: if the conformity of the legal system with these values depends on the text of the regulatory laws, we would find either that the system falls dramatically short of these principles, or that these principles need to be revised. 77 77 Professor Rubin argues: “When a transitive law is applied by an organism, our normative system simply does not make the requirements that Fuller perceives.” Rubin, op. cit. cit., note 74, p. 399. Close However, the same conclusion does not follow if we understand these principles of communication, as Professor Strauss argues, as “obligations applicable to the system” 78 78 Peter L. Strauss, Legislative Theory and the Rule of Law: Some Comments on Rubin, 89 Colum. 427, 445 (1989) [hereinafter Strauss, notes on Ruby]. Close unlike the regulatory legislation itself. From this perspective, “the Agency`s development and formulation of administrative policy” clarifies what the law requires of private parties.
79 79 id. Close This position – that we should ask ourselves how agency measures imposing obligations on private parties are compatible with these formal values of the rule of law – has a solid theoretical foundation. As mentioned earlier, a fundamental aspect of the law is that it provides guidance on the behaviour of private parties – it aims to impose practical obligations. However, to guide action, the law must be accessible, consistent, reasonably clear and stable, and forward-looking. 80 80 See, for example, Fuller, supra note 12, p. 53 (“To speak today of regulating or directing behaviour by means of rules adopted tomorrow is to be spoken in blank prose.”). Proceed on the basis that these principles of the rule of law are intended to protect the guiding properties of the law, it makes sense that these notification requirements apply to administrative actions that bind private parties, not just to the delegation of laws. Therefore, the termination principles duly apply to the agency`s actions that create binding obligations for private parties, as well as to those aspects of the bylaws that do so. The system as a whole is therefore always able to meet these formal requirements.
However, these requirements apply to sources of law that are binding on the public, including rules and decisions of administrative authorities. 2. Extent of powers. — But what is the extent of the power that is granted? Since agencies only have statutory powers, the rule of law clearly requires that an agency act within this delegated authority. Indeed, this ultra vires principle according to which only the authorized action is valid is and can only be a cornerstone of administrative law. In this regard, the rule of law is also linked to the supremacy of the courts. Therefore, the courts should ultimately have the power to review administrative action and any obvious limitation of that power should be criticized. The implicit principle of the rule of law that the executive must act in accordance with the law and not according to its own decree is still a cardinal principle of the common law system, which is followed India.In the common law system of the executive branch does not have its own inherent powers, but all its powers flow and emanate from the law. This is one of the most important principles that play an important role in democratic countries like India.
There is a fine line between judicial review and legal activism. The third meaning of the rule of law emphasizes the independence of the judiciary and the supremacy of the courts. The Supreme Court correctly reiterated in Union of India v. Raghubir Singh that there is no doubt that the decision of the higher courts confers a significant degree of regulation on people`s lives and the functions of the state. Although the complete absence of discretion or inequality is not possible in the administrative era, the concept of the rule of law has been developed and prevails in common law countries such as India.