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Administrative Justice Fin de siècleEarly Judicial Standards of Administrative Conduct in Europe (1890-1910)$
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Giacinto della Cananea and Stefano Mannoni

Print publication date: 2021

Print ISBN-13: 9780198867562

Published to Oxford Scholarship Online: March 2021

DOI: 10.1093/oso/9780198867562.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 13 June 2021

The Administration and the Judge: Pragmatism in Belgian Case Law (1890–1910)

The Administration and the Judge: Pragmatism in Belgian Case Law (1890–1910)

Chapter:
(p.73) 3 The Administration and the Judge: Pragmatism in Belgian Case Law (1890–1910)
Source:
Administrative Justice Fin de siècle
Author(s):

Yseult Marique

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198867562.003.0003

Analysing the administrative case law of the Belgian Supreme Court between 1890 and 1910, this chapter shows that the Supreme Court applied the main features of a positivist legal thought (based on the assumption of clarity, coherence, and completeness of the formal law) to administrative action and its legality. It equipped the central and local institutions of the State with functioning powers, allowing an operational state to develop despite social unrest. As the social and technological context changed at the end of the nineteenth century, the statute book became more confused, however. This gave the Supreme Court ample room to interpret the law creatively and pragmatically. The ‘administrative miracle’ in Belgium is that the Supreme Court did not shackle social forces and unbridle the administration so much that the very course it wanted to avert actually happened. This may be down to the creative judicial genius that the Belgian judiciary developed a formal approach whilst deciding pragmatically on the substance of cases.

Keywords:   judicial review, separation of powers, pragmatism, positivism, judicial interpretation, Belgium, Supreme Court, subjective rights, political rights, civil rights

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