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The New Separation of PowersA Theory for the Modern State$
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Eoin Carolan

Print publication date: 2009

Print ISBN-13: 9780199568673

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780199568673.001.0001

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Institutional Legitimacy and the Administrative State

Institutional Legitimacy and the Administrative State

(p.46) 3 Institutional Legitimacy and the Administrative State
The New Separation of Powers

Eoin Carolan

Oxford University Press

This chapter begins with a short account of Unger’s theory of counter-normative exceptions. This posits that exceptions in law may indicate the existence of an alternative ideology. This suggests that the system’s efforts to develop exceptions which address the limitations of the tripartite separation of powers theory could provide a useful basis for the development of an alternative institutional model. This chapter examines a number of these areas. In particular, it considers how the vesting of discretionary decision-making powers in administrative bodies has been dealt with. It also examines how traditional ideas of the state as a top-down, rule-governing entity have been challenged. It argues that the courts have developed independent notions of substantive value and procedural fairness as a way of regulating and legitimizing the changing nature of contemporary governance.

Keywords:   exceptionalism, administrative discretion, imperium, electoral accountability, delegation, sovereignty, decentralization, privatization, fairness

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