Due Process of Law Beyond the State.

Author:Tully, Stephen
Position:Book review

Giacinto delta Cananea, Due Process of Law Beyond the State (Oxford University Press, 2016) ISBN 978-0-19-878838-6,206 pages.

The author - a professor of administrative law and European Union administrative law from the University of Rome--writes in his foreword that he found that the work of administrative and constitutional lawyers on the one hand and international lawyers on the other "leave a gap that is sometimes hard to bridge. This book is an attempt to bridge that gap."

The introductory Chapter 1 presents a transnational perspective on administrative justice. "Administrative" is broadly defined as the exercise of power and is not limited to rule making or adjudication (p 1). The author contends that the requirements of procedural due process are increasingly invoked in transnational situations between individuals, corporations and public entities (p 3).

The book consists of three parts. Part One considers the requirements of administrative due process. Part Two presents the rationales for due process requirements. Procedural requirements have a variety of rationales, and in the transnational arena there are a set of rationales which are distinct from those in the national one. Part Three presents a theory of administrative due process beyond the State, of which there are several rival theories.

Chapter 2 of Part One considers the requirement to carry out a procedure. Decisions of public authorities are typically preceded by a series of activities and acts or a sequence of steps that is called procedure (p 22). The codification of administrative procedure is an increasingly evident legal phenomenon, and only a minority of States presently lack administrative procedure codes (p 23). Chapter 3 considers the maxim audi alteram partem or the right of parties potentially affected by a decision to have a reasonable opportunity to be heard. When faced with due process problems that have no compelling historical analogies, courts and arbitral tribunals typically tend to look to other legal systems (p 59). Chapter 4 addresses the giving reasons requirement. Each chapter in Part One follows a formula - a description of the historical origins of the particular administrative rule under consideration, an explanation of the underlying rationale, an attempt to identify a minimum standard using national examples, and finally teasing out the extent to which a transnational minimum standard might exist from judgments and decisions of international...

To continue reading