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Recourse and the Principle of Non Lex Sed Corruptio Legis
Published online by Cambridge University Press: 31 July 2008
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In his discussion of the nature of law St Thomas Aquinas cites St Augustine's principle that an unjust law ceases by that very fact to be a truly binding one, and this remark provides us with a useful springboard for a discussion of how different institutions have dealt with the occurrence of such a problem within their own systems. There are two principal factispecies envisaged when we deal with such a scenario within the Christian community; when a law has been interpreted erroneously by its officers and when the law is applied by the administration with a rigidity that exceeds the intention of the legislator. In these circumstances, it is arguable that we are dealing not with true law as such but with the corruption of law, non lex seil corruptio legis. The expression corruptio legis is here understood not in a subjective but in an objective sense, i.e. it is not to be understood to refer to the administration or the officials that apply the law but to the legal norm itself. The issues raised by the principle, non lex sed corruptio legis, are not simply ethical but also legal, and the important resolution in Augustine and Aquinas offers a useful window into one of the central problems of comparative administrative law.
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1 For Aquinas, law (considered in general) was an ordinance of reason that was promulgated by authority (those who have the care of a community) for the sake of the common good (Nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis hubet, promulgata (cf St Thomas Aquinas, Summa Theologiae, I II, q 90, art 1: also Henle, R. J., The Treatise on Law (Notre Dame 1993), p 145)Google Scholar. Some thinkers in the Catholic Church have suggested that this definition cannot be applied to canon law since the latter is an ordinance of faith (cf Correco, Eugenio, The Theology of Canon Law (Pittsburgh 1992), pp 70–76)Google Scholar. but this would suggest an unhealthy dichotomy between faith and reason apart from the fact that mam institutes of canon law are not expressions of divine faith but the rational response of the Church to the exigencies of different epochs. For essays on the relationship between theology and canon law. see Orsy, L., Theology and Canon Law (Collegeville: The Liturgical Press, 1992).Google Scholar
2 Aquinas actually discusses the dictum of Augustine, les ease non videtur quae justa non fuetit when describing laws that are unjust and even goes so far as to say that such laws may be considered as acts of violence rather than truly binding laws et huitsmodi mogis sum violentiae quam leges). An example might be a tax for the support of public education (hence for the common good) but levied disproportionately on the poor (hence unjust). In balance it should be noted that Aquinas does add that such laws do not bind the conscience except perhaps in order to avoid scandal or disturbance (cf Thomas Aquinas. Summa Theologiae. I II, q 96, art 5, 4).
3 One should add here that within the sphere of comparative administrative law the terms ‘objective subjective’ are used slightly differently Those in administrative law who belong to a subjective optic on the problem tend to emphasise the rights of those affected by the administration, while those who adopt an objective optic tend to view the problem as a difficulty with the norm. These two approaches tend to propose different solutions, the first a judgment on the subjective rights of the plaintiff, the second a simple decree of annulment of the legal norm that has been challenged. We have presented it here as an objective problem as a gesture of respect to the objectivist school of thought (For more on this see the collection La quistizia amministrativa nella Chiesa. (ed Grochelevski, Z.: Città del Vaticano: 1991Google Scholar).
4 Aquinas (Summa Theologiae I II. q 90. art 3) cites the maxim of Isidore of Seville: Lex est constitutio populi secundam quam maiores nata simal cian plebibus aliquid Sanverant (Isidore, Etymologies V. 10): see Grattan, Decretum D 2 c 1.
5 Cf Henle, , The Treatise on Law. p 37.Google Scholar
6 Cf. Adler, Mortimer, The Development of Political Theory and Government, p 72.Google Scholar
7 One is not suggesting, however, that the juridical and the moral should he regarded as coextensive spheres. Neil McCormack points out the benefits and indeed the necessity of keeping the two spheres distinct (cf. McCormack, N., ‘Natural Law and the Separation of Law and Morals’, in Natural Law Theory: Contemporary Essays (George, R. P. ed. Oxford, 1992). 115f)Google Scholar. Even legal moralists like Lon Fuller acknowledge the distinction. This duly noted there is a case for arguing that law involves an anthropological option, i.e. a judgment about the nature of man: ‘To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is. or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults’ (cf Fuller, L., The Morality of Law (Yale 1961), p 162).Google Scholar
8 In order to adapt Aquinas' discussion to the legal framework of the Christian community one would have to expand his notion of the common good to include an internal aspect (the salvation of the individual) and an external aspect (the peaceful coexistence of the People of God).
9 ‘Progress towards a comprehensive system of administrative law … I regard as having been the greatest achievement of the English courts in my judicial lifetime’ (cf. Wade, H. W. R., Administrative Law: The Problem of Justice Milan 1990 p 703).Google Scholar
10 Cf Orlando, V. E., Teorica della legislazione e del governe (Firenze 1888), p 179Google Scholar. In fact the text in Aristotle's politics (The Politics 1286a7 1286b40) does not show so neat a division. Aristotle is simply using the faculties of the human person to distinguish the faculties of judging and governing. Most comparatisists are aware that it is difficult to distinguish the three powers in concrete instances.
11 The historv of German administrative justice is characterised by a reaction to the impositions of the Napoleonic Code of 1805 and its double-jurisdiction of the Conseil d' Etat. In 1863 in the district of Baden a special administrative tribunal was established which was independent ot the active administration. This svslem was suspended under the Nazis. After the Second World War a national svstem of administrative tribunals was established, with two grades, the lower grade for administrative tribunals as such (******Verwalungngericht), the upper grade lor the superior tribunals (Observerwaltungsgericht). At a federal level a federal administrative tribunal (****Bundesqaltungsgericht) acts as the tribunal for the revisions of the decision of federal authorities and of cassation for decisions delated from the tribunals of the Länder (cf. R. Bachof, ‘La juridiccion administrativa en la R. F. alemana’ [1985] RAP 289, 316).
12 For a comparison of the American and Roman Catholic systems of administrative recourse, see Coughlin, John, Administrative Justice at the Supreme Tribunal of the Apostolic Signatura and the United States Supreme Court A Comparative Study (Rome 1994), pp 27, 121.Google Scholar
13 The kinds of institution affected by administrative law in Britain would include the Executive, quangoes, local authorities, tribunals and inferior courts (cf Craig, P. P., Administrative Law (London 1989). p 34).Google Scholar
14 Cf Craig, , Administrative Law. p 37.Google Scholar
15 Cf Craig, , Administrative Law. p 59.Google Scholar
16 The problem is that, unlike in Germain with its Grundgesetz, in Britain the absence of a written constitution effectively leaves the judiciary and the body of law at the mercy of a parliamentary majority. It also means that we can make no law more fundamental than any other with the consequent loss of direction this means to jurisprudence. Finally the absence of such a law means that our citizens do not enjoy vindicable protection with regard to what in other European states are regarded as the fundamental rights of the citizen. Wade has opined that European laws could be written into the statute book as a way of offsetting the problem. but the recent refusal of the British government to accept the Social Chapter on the grounds that it would make our workforce less attractive to foreign investment, suggests that it will rot be easy to overcome the convergence of economic exigency and political xenophobia that characterised the climate in Britain until recently.
18 Cf Diplock, Lord in R v Inland Revenue Canns, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617. [1981] 2 All ER 93. HL.Google Scholar
19 RSC Ord 53. r 3(5): Supreme Court Act 1981 (c 54). s 31(3). For jurisprudence, see R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184. [1976] I WLR 550. CA. For a commentary see Ingram, Terence, The English Legal Process (London, 1990). p 325Google Scholar. The exception to the rule is the use of ‘relator actions’ according to which the plaintiff may use the name of the Attorney General as a nominal plaintiff to contest the legality of actions of local government (i.e. Attorney-General ex rel McWhirter v Independent Broadcasting Authority [1973] QB 629. [1973] I All ER 689. CA).
20 Wade thinks that the requirement of a sufficient interest appearing at this stage, i.e. at the stage of granting leave to apply, is actually the result of a mistake by the legal clerk when transcribing a recommendation of the Law Commission into RSC Order 53! The draftsman misunderstood the nature of the issue and wrote it into Rule 3, which deals not with the granting of remedies but with the earlier stage of leave to apply. This has made the question of standing a threshold question to be determined before the application itself may commence, as shown in the landmark case of R v Inland Revenue Conns, ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All ER 378 at 382. DC. per Lord Widgery LCJ (not reported on this point in other reports).
21 Cf Diplock, Lord in O'Reilly v Mackman [1983] 2 AC 237 at 275, [1982] 3 All ER 1124 at 1126, HLGoogle Scholar. In this case, that of a group of prisoners who had been deprived of their remission by allegedly unfair procedures on the part of the Board of Visitors, but who had failed to respond within the statutory time limits, legitimate expectations which were not necessarily protected as rights in private law may be the subject of judicial review in public law. on the ground that the court has the power to order the proceedings to continue as if they had begun by writ (cf Emery, C. T. and Smythe, B., Judicial Review (London 1986). p 255).Google Scholar
22 For a historical survey of the concept of interest in the Italian system. see Scoca, F. G.. ‘Sguardo storieo sopra i contenuti ed i limiti della tutela nei confronti dell'amministratione’ in La tutela delle situazioni giuridiche nel diritto canonico, civile, ammiinistrative. Milano 1991, pp 29–42Google Scholar. For a discussion of the relevant doctrinal indications of the jurisprudence of the Fourth Section of the Consiglio di Stato. see Salvatore, P., ‘II problema della legitliinazione: interes.se legittino, interesse collelivo, interesse diffuso, interesse di fatto’ in Consiglio di Stato, Studi per il centenario della Quaila Sezione (Rome 1989), vol II. pp 489–512.Google Scholar
23 Cf Federation regionale des associations de protection de la nature et de l'environment dans le Nord de la France-Nord c. M Franck [1992] in RDP 546. n 3.
24 For the sake of clarification, one should distinguish interest considered as a substantive situation (interesse legiitimo) and interest considered as a procedural instrument (interesse ad agire). Here we are dealing with the latter (for canonical doctrine and jurisprudence, see Barrett, R. J., The Capacity to Act in Court against an Administrative Act which Injures a Group of the Christian Faithful in its Juridical Sphere (Rome 1996). pp 93–154).Google Scholar
25 R v. Inland Revenue Conns, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617. [1981] 2 All ER 93. HL.
26 For the canonical understanding of the concept of gravamen Hostiensis sets forth the classical lines in his Summa Aurea. vol II. De appell., 6, 1–2. pp 801–3. Applications of the concept to subjective right are provided by Ignacio Gordon in ‘Origine e sviluppo della guistizia amministratisa nella Chiesa.’ in De institia administatisa in Ecclesia, Roma, Catholic Book Agency, 1–18. while the same concept as related to administrative recourse is discussed by Matthews, Kelvin, ‘The Development and Future of Administrative Tribunals’ in Studia Canonica 18 (1984) 3–223Google Scholar, and a comparative analysis provided by Moreno, Faustino Cordon in La legitimacion en el processo contenciosa-administrative (Pamplona 1979), pp 88–105.Google Scholar
27 This understanding has also been assumed by canonical jurisprudence. It appears in a landmark case. published on 27 November 1987. which was judged by the Supreme Tribunal of the Catholic Church, the Apostolic Signatura. when it delineated the contours ot an injury that would legitimate administative recourse. The decree in that case sums up the doctrine: ‘Locutione gravatum esse comendii (Codex luris Canonici 1983, canon 1737, para I) haud obscure indicatur fundamentum iuridicum legitimationis activae. Gravamen in casu praesupponit recurrentem ius aliquod subjectivum aut saltem interesse habere: quodcunique. sed debet esse. ut doctrina docet. personale. directum, actualc et a lege, saltem indirecte naclatim’(cf Sig. Apost., Prot. N., 17447 85 CA. I. deer, def., n 4. p 5).
28 Two canons from the Latin Code, canon 85 and canon 90. para 1, regulate this matter, Canon 85 states: ‘Dispensatio. seu legis mere ecclesiasticae m casu particulari relataiio, concedi potest ab us qui potestate gauddent exsecitiva intra limites state competentiae, necnon ab illis quibus potestas dispensandi explicite vel implicite comptetit sive ipso iure sive vi legitimae delegationis’, Canon 90, para 1, states: ‘A lege dispensetur sine iusla et rationabili causa, habita ratione adninctorum casiis et grautalis legis a qua dispensatur: alias dispensatio illicita esl et. nist ab ipso legislature eiusve Miperiore data sit. eiiam unali-da’ (Codex luris canonici 1983, canons 85 and 90, para 1 ).
29 Classically, the distinction has been acknowledged in the very ambiguity of the concept of his as it appears in standard treatments of canon law. It may refer to the objective norm or the law, to the subjective right which is claimed from the law, or to the virtue of doing justice. This tripartite division of the concept allows for considerable flexibility when discussing the relationship beween lex and ius in the canonical regime (cf. Kutscheid, B. and Wilches, F. A., Historia luris canonici (Rome 1943). vol I, p 12)Google Scholar
29 Zenon Grocholewski, presently the Secretary of the Signatura, prefers to compare it to three grades existing in the Italian order: the Kirst Section to the supreme judicial tribunal, the Corte di Casazione, the Second to the supreme administrative tribunal, the Consiglio di Stato, and the Third to the Ministerio di Giustizia, albeit with several important differences.
30 Art. 123 of the Constitution Pastor bonns states:
§ 1. Praetera cognoscit de recursibus. intra terminum petemptorium triginta dierum utilium interpositis, adversus actus administrativos singulares sive a Dicasteriis Curiae Romanae latos sive ab ipsis probatos, quoties contendatur num actus impugnatus legem aliquam in decernendo vel in procedendo violaverit.
§ 2. In his casibus, praeter indicium de illegitimitate, cognoscere etiam potest, si recurrens id postulet, de reparatione damnorum actu illegitimo illatorum.
§ 3. Cognoscit etiam de aliis controversiis administrativis, quae a Romano Pontifice vel a Romanae Curiae Dicasteriis ipsi deferantur necnon de conflictibus competentiae inter eadem Dicasteria.
30 Aurelio Sabattani, a former Prelect of the Signatura, has specified which laws such impugned decisions must be compared against: (a) canonical laws from any authority endowed with legislative powers; (b) civil laws canonised by canon law; (c) concordats entered into by the Holy See with individual nations; (d) customs within the stated limits; (e) principles of divine positive and natural law which may not be contained expressly in church law; (f) suppletory norms of canon law; (g) properly approved statutes and constitutions or precepts given to individuals: (h) orders or regulations, norms given by administrative authorities in the concrete application of the law: cf. Sabattani, A., ‘Indicium de legitimitate actuum administrativorum a Signatura Apostolica peractum’ in lus Canonicum 16 2 (1976) 237.Google Scholar
32 Cf Codex luris canonici 1983, canon 1732.
33 Ex alloctione ad quosdam episcopos, in Communicationes 25 (1993) 25.Google Scholar
34 For an analysis of the status of the responses of the Pontifical Council, see Wrenn, Lawrence, Authentic Interpretations on the 1983 Code (Washington, CLSA, 1983), 1–6Google Scholar. For an analysis of the competence of the Pontifical Council, see Urrutia, F. J., ‘De Pontificio Consilio de legum textibus interpretandis’ in Periodica 78 (1989) 503–521.Google Scholar
35 Cf Urrutia, , ‘Quandonam habeatur approbatio in forma specifica’ in Periodica 80 (1991) 3–17.Google Scholar
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