Delegation

Abstract

In this chapter, I will consider the claims of delegation, or subordinate legislation, to be a strictly institutionalized source of law. By “delegation” is meant the following. It frequently happens that a legislative body will enact a broadly phrased regulatory framework, and then leave the administration and application to cases of that framework to a subordinate tribunal or system of tribunals. The subordinate body is thus a creature of legislation; it is not the original source of the legal norms that it administers and applies. On the other hand, the legislative rules in its charge are phrased in ways which ensures that the subsidiary body has a great deal of room in which to clarify the import of the legislative norms, to produce sub-norms, to develop procedures, and ultimately to adjudicate cases. Thus prima facie there is a good case to be made for seeing the subordinate body as an independent source of law. Such a case cannot be unqualified, simply because of the dependence of the subordinate body on the legislature. The dependence is a form of subordination by derivation. But the question here is whether such a dependence still leaves room for theory to consider delegation as a source of law.